Tuesday, May 15, 2018

What is the difference between a legal father and a biological father?


A family law case is before the Florida Supreme Court right now that is quite interesting.  The court must decide a dispute between a child’s legal father and her biological father.

You see, in Florida, when a child is born of a marriage, the legal father is the man married to the mother.  The legal father, therefore, may not be the biological father.  Thus, the biological father may not have any rights to the child. 

This presumption of legitimacy is based on the public policy of protecting the welfare of the child.  Prior to DNA testing, there was no scientific way of knowing biologically who the father was.  It was presumed that the husband was the father. This presumption protected the welfare of the child.  In cases of divorce, the child had protections of child support and health care. The law has not kept up with the science.

As the law is currently, a legal father who is not a biological father would have to agree to release his rights and there would have to be a dissolution of marriage for a biological father to begin the process to become the legal father.  If the legal father is not willing to disestablish his rights, a paternity action would ensue.  If the legal father and mother wish to remain married, then the biological father cannot become the legal father.

This very issue is what the current case before the Florida Supreme Court is about.  The biological father is asking the court to grant him shared custody and parenting rights with the legal father and mother, as they remain a married couple.

Ultimately, the Florida legislature, as well as all state legislatures, are going to have to modernize the law to keep up with scientific developments. 

If you have a paternity issue, contact Heather Bryan Law for your consultation.







Thursday, May 3, 2018

But I Am The Father, Why Don't I Have Any Rights?


You may very well be the biological father but does not mean you are the legal father or that you have any legal rights to your child.  It is important that if you are an unmarried father, you immediately establish your legal rights to your child.  In Florida, if a child is born out of wedlock, there is no presumption of fatherhood.  Paternity should be established first and foremost. 

An establishment of paternity can be done in several ways:
  • At the hospital, the “father” and mother when signing the birth certificate also sign an affidavit acknowledging paternity.  This affidavit is notarized and witnessed by 2 individuals.  If you only signed a birth certificate but did not sign this affidavit, you have not established paternity. 
  • The “father” or mother files a petition for paternity through the court.  The parties then either stipulate to paternity or there is DNA testing that is conducted. 
  • The Florida Department of Revenue may commence a paternity proceeding and child support proceeding.

If you do not establish paternity, the mother has all of the legal rights concerning the child and the “father” more than likely has none.  Therefore, even a biological father will likely have no say when it comes to time spent with the child, schooling, travel, or even if the mother decides to move the child out of state.  Paternity must be established before the “father” has a say in any of those things. 

One of the more pressing concerns is that a mother could give the child up for adoption and the “father” would have no recourse.  It is imperative that a “father” preserve his rights by registering with the Florida Putative Father Registry maintained by the Office of Vital Statistics.  This registration will preserve a “father’s” right to notice and consent to an adoption. 

Once paternity is established, this does not automatically mean that parental responsibility or a time-sharing arrangement is established.  It is important that you file for a parenting plan with the court so that you have a time-sharing arrangement for your child and parental responsibility is established.  If you file a petition for paternity, a parenting plan will and child support will be a part of that process.

If you are an unwed father and need to establish paternity or time-sharing for your child, contact Heather Bryan Law today.  We will advocate for you!

Tuesday, April 17, 2018

Can I Get My Attorney's Fees Paid in My Family Case?


Divorces can be expensive. So can going back to court to enforce orders in a multitude of family issues from time-sharing to alimony payments.  Many people attempt to represent themselves because of the cost of attorney’s fees.  While in some circumstances (I would venture to say very few) a person may represent himself or herself quite well, in most circumstances, a person does not know all of his or her rights and does not end up with the best outcome. 

Florida does allow for courts to order one party to pay the other party’s reasonable attorney’s fees and costs in certain situations to ensure that both parties have equivalent access to capable legal counsel and to ensure that one party does not have an unfair advantage over the other.  The court must first consider the financial resources of both parties.  The primary considerations of the court are need and ability to pay.  In other words, the party asking to be awarded attorney’s fees must prove that he or she has a need.  Then he or she must prove that the other party has the ability to pay. 

The request for attorney’s fees must be made in the initial document filed in the case, typically the petition.  If the party defending the case also wishes to ask for attorney’s fees, then he or she must ask for them in his or her first document filed, either the answer or counterpetition. 

The court can grant temporary as well as final fees.  The court uses the same considerations for temporary as final fees: need and ability to pay.  It is important to note that one may have a need, but that does not necessarily mean that the court will find that the other party has the ability to pay. If this is the case, then the party will not be awarded attorney’s fees. 

Finally, the fee must be reasonable.  The court will consider the amount that the attorney is requesting and if it is in line with the standard in the community and the experience of the attorney.  A court may grant an award of attorney’s fees but may lessen the amount that is requested because the court determines the amount to be unreasonable.  Also, the court will consider whether or not the party and attorney have filed frivolous motions for the purpose of delaying resolution of the case.  If this is the case, then the attorney’s fees may be denied. 

If you are considering a divorce or other family matter, you may have a valid claim for attorney’s fees.  Call Heather Bryan Law at 863-825-5309 or contact us online, to discuss your case today.

Saturday, March 10, 2018

Co-Parenting and Relocation

One would think that you should be able to pick up and move with your child(ren) whenever and wherever you would like. However, if you have shared parental responsibility pursuant to a parenting plan in Florida, unfortunately you cannot just move; or you might be in contempt of court.  It seems that I have had to counsel quite a few people on "relocation" lately, so I thought a blog post was necessary.

Relocation is the change of your residence at the time of the order establishing or modifying time sharing for 60 consecutive days.  The change of location of residence must be 50 miles.  Therefore, If you move within a 50 mile radius, then you have not relocated. 

If you and your co-parent agree to the relocation, then the statute allows the two of you to sign an agreement saying that you both consent.  The agreement must also define the new time sharing schedule and describe the transportation arrangements.  This agreement can be filed with the clerk of courts and the parent who wishes to relocate is free to do so.

If the other parent opposes your relocation, however, you cannot just do it anyway.  You must file a petition to relocate and have it served on the other parent.  There must be a hearing before a judge to determine if the relocation is in the best interest of the child.  It does not necessarily matter if it is in your best interest to relocate.  The court's main consideration is whether it is in the child's best interest.  The court will look at all of the following factors for consideration:
  • The nature, quality, extent of involvement, and duration of the child’s relationship with the parent or other person proposing to relocate with the child and with the non-relocating parent, other persons, siblings, half-siblings, and other significant persons in the child’s life;
  • The age and developmental stage of the child, the needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child;
  • The feasibility of preserving the relationship between the non-relocating parent or other person and the child through substitute arrangements that take into consideration the logistics of contact, access, and time-sharing, as well as the financial circumstances of the parties; whether those factors are sufficient to foster a continuing meaningful relationship between the child and the non-relocating parent or other person; and the likelihood of compliance with the substitute arrangements by the relocating parent or other person once he or she is out of the jurisdiction of the court;
  • The child’s preference, taking into consideration the age and maturity of the child;
  • Whether the relocation will enhance the general quality of life for both the parent or other person seeking the relocation and the child, including, but not limited to, financial or emotional benefits or educational opportunities;
  • The reasons each parent or other person is seeking or opposing the relocation;
  • The current employment and economic circumstances of each parent or other person and whether the proposed relocation is necessary to improve the economic circumstances of the parent or other person seeking relocation of the child;
  • That the relocation is sought in good faith and the extent to which the objecting parent has fulfilled his or her financial obligations to the parent or other person seeking relocation, including child support, spousal support, and marital property and marital debt obligations;
  • The career and other opportunities available to the objecting parent or other person if the relocation occurs;
  • A history of substance abuse or domestic violence as defined in s. 741.28 or which meets the criteria of s. 39.806(1)(d) by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation; and
  • Any other factor affecting the best interest of the child or as set forth in s. 61.13.
If you relocate without going through the proper procedure of filing a petition, then your co-parent could file for contempt against you.  The judge would more than likely use that against you in any future proceedings considering your request to relocate.  In addition, you may also be charged criminally for kidnapping. 

If you are considering relocation, or if your co-parent has attempted to relocate without your permission, then you need the help of an experienced attorney.  Call Heather Bryan Law for a consultation at 863-825-5309, or contact us online.

Monday, December 18, 2017

Co-Parenting Through the Holidays

It's that time of year.  The time when I get complaints about my child's parent is not being cooperative about Christmas and I want to take them to court.  It is difficult, because both parents want to spend as much time with their child as possible.  You may want to leave to go out of town earlier than your parenting plan will allow, and maybe the other parent is being unreasonable by not allowing you to do so.  Or maybe your parenting plan has been in place for a few years and now that your child is older, you believe the holiday schedule is just not working anymore.  Now I could be the type of lawyer that sees a money making opportunity and immediately starts typing up a motion for enforcement or a petition for modification, but I'm not.  I say let's put the brakes on and talk about this for a minute to see if that is necessary.

First and foremost, it is always about the best interests of the child.  The law looks to the best interests of the child, and the parents should be looking at what is best for their child.  Parents need to take a real long look in the mirror and ask themselves that question.  Is what I want really what is best for my child, or am I doing it for selfish reasons? Is what I am asking for or complaining about because I am lonely or to punish my ex?  Be honest.

Next, I would suggest not thinking of co-parenting and making compromises as "giving in."  When you co-parent, you are making choices that benefit your child.  Anything that benefits your child and makes your child healthier is not "giving in."  (Now, this is not to suggest that you allow someone who is a narcissist to control you and your life.  There is a difference.)

If the other parent is making unrealistic demands, expecting you to agree to modifications well beyond the parameters of the parenting plan, and it is having unhealthy effects on your child, then yes, it is probably best to seek some sort of legal action.  There are options other than immediately petitioning the courts, however.  That is why it is important to speak to an experienced family law attorney to discuss all of your options.

If you need to discuss modifications or enforcement of your parenting plan, give Heather Bryan law a call at 863-825-5309, or contact us online today.

Monday, November 27, 2017

Modifying A Parenting Plan

I get many calls from parents wanting to change, or modify, their parenting plan.  The problem lies in that their reason for the change may not meet the legal requirements for a change to the parenting plan. In order to modify a parenting plan, there must be a 1) substantial, 2) material, and 3) unanticipated change in circumstances and a showing that the modification is in the best interests of the child. 

Parents think that just because a parenting plan is no longer working for them, that is reason enough for a change.  It may be, if you can get the other parent to agree and both of you can come to a joint agreement for an amended parenting plan.  However, if the other parent does not agree, and you are attempting to petition the court for a modification to the parenting plan, the legal standard above must be met. 

A remarriage, a new child, a new job, or a new move, are typically not enough, unless there are unusual circumstances.  The courts have usually ruled that these circumstances are expected in life and are not unanticipated.  It is definitely not enough that the other parent is just being difficult.  It is best that you have an experienced family law attorney by your side to advise you and determine if you meet the legal standard.  Also, you might be able to utilize an attorney through some sort of alternative dispute resolution to stay out of court and arrive at an amended parenting plan outside of court.  


My best advise is to utilize an attorney from the beginning. It seems that most of my calls from parents wanting to modify their parenting plans are from parents that did not use an attorney in their divorce.  They “did it themselves.”  And now they are realizing all of the many situations they did not think through very clearly and need help sorting out.  If you are going through a divorce or need help with a modification, contact Heather Bryan Law for your consultation today, online or at 863-825-5309.

Monday, October 30, 2017

Types of Protective Injunctions in Florida

There are 5 very specific types of injunctions, or restraining orders, that you can apply for in Florida.  It is important that you know the difference between them, because if you apply for the wrong one, the injunction can be denied. 

On the other hand, if you are defending against an injunction, that is the first line of defense.  Was the proper injunction applied for? 

Below is a listing of the types of Injunctions in Florida:

1.      Injunction for Protection Against Domestic Violence – This injunction is specifically for persons who have been the victim of domestic violence or who are afraid of imminent domestic violence.  Domestic violence includes assault, battery, sexual battery, stalking, kidnapping, and false imprisonment. A domestic relationship means that the person is either your spouse, former spouse, related to you by blood or marriage, living with you presently, or has lived with you in the past, or the person is the parent of your child(ren) even if you have not lived with the person.  If the person you are attempting to file an injunction for protection against has not hurt you in one of the above listed ways, and you are not in a domestic relationship with that person, then you cannot get this type of injunction. 

2.      Injunction for Protection for Repeat Violence – This injunction is specifically for persons who are victims of repeat violence.  Repeat violence means that two incidents of violence have been committed against you by another person, one of which must have been within 6 months of filing the petition.  Repeat violence includes assault, battery, sexual assault, stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury.  This type of injunction is intended for non-relatives.

3.      Injunction for Protection Against Dating Violence – This injunction is specifically for persons who are victims of dating violence, but who never lived together.  If you are in imminent danger or have been in danger for the past 6 months, this injunction is for you.  The dating relationship must have existed in the past 6 months, the nature of the relationship must have been characterized by the expectation of affection or sexual involvement between the parties, and the frequency and type of interaction must have included that the persons have been involved over time and on a continuous basis during the course of the relationship.  It does not include violence in a casual acquaintanceship.  This injunction is intended for non-relatives.

4.      Injunction for Protection Against Sexual Violence – This injunction was intended to correspond with an active criminal investigation.  You must have reported the sexual violence to a law enforcement agency and be cooperating in the criminal proceeding (if there is one).  You may file this petition if you are the parent or legal guardian in behalf of your minor child who is living at home and is the victim of sexual violence.  You may also seek this injunction for protection if the offender was sent to prison and you discover that the offender is getting out of prison within 90 days of your petition. 

5.      Injunction for Protection Against Stalking – This injunction is specifically for persons who are victims of repeat harassment, following, or cyberstalking.  Cyberstalking means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving to legitimate purpose.  This injunction is intended for non-relatives.

Whether you are applying for an injunction for protection or you are defending against one, it is important that you have a knowledgeable attorney by your side.  Even though injunctions are civil in nature, injunctions have elements of both family and criminal defense law intertwined.  You should have an experienced family and criminal defense attorney to walk you through the process.  Call Heather Bryan Law today at 863-825-5309, for your consultation, or contact us online