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

Wednesday, October 18, 2017

Heather's Top 5 "Myths" in a Divorce Case

5. We have already agreed to everything.   You may have sat down and agreed to everything.  You may have even typed it up and signed it.  But all of that may go down the drain, when it actually comes down to the process of the the divorce.  I have seen that happen more times than not.  Divorce somehow has a way of making the ugly come out in even the best people.  They are hurt and and they want their spouse to feel their hurt.  Suddenly those agreements are non-existent.

4. My spouse is not going to hire an attorney.  I had this happen just this past week.  Guess what? The spouse hired an attorney.  And as they should!  You cannot count on the fact that everything is just going to go your way during the divorce process.  You must be willing to compromise on some things.

3. I know my soon-to-be-ex-spouse better than you (attorney).  Therefore, I am not going to listen to my attorney's advice.  You hired your attorney for a reason.  You really should listen to your attorney.  Your attorney deals with these types of situations on a daily basis.  He or she is a pretty good predictor of how spouses will react in certain situations.  It's usually a good idea to listen!

2. This is going to be easy.  The minute I think this is the minute something goes terribly awry.  I have learned to never think this way.  And if it does end up being easy in the end, then great!  (But I haven't had a family case yet that was easy.)  In family cases, you are dealing with the end of a marriage, child custody, and money issues.  None of these are easy issues.

1. I don't need an attorney. Even lawyers hire lawyers.  Emotions are high and you are not at your best during this process.  You need an advocate to stand beside you and make sure you are protected.

If you are in the midst of a family case, you need a compassionate, yet aggressive attorney by your side.  Call Heather Bryan Law today for your consultation, at 863-825-5309, or contact us online.

Monday, August 21, 2017

Co-Parenting: For the Sake of Your Children

Divorce is a heart wrenching experience.  I am speaking not only as an attorney, but also from personal experience.  It is even harder when you are undergoing it with children involved.  You tend to think that you know what is best for your children and that you are the parent that is doing things the “right way” for them.  It can be hard to remember that your children, in most cases, have another parent that loves them just as much as you do.

It is hard to put your own hurt and emotional baggage aside and remember the best in our ex-spouse.  But you need to…for the sake of your children.  If you are just starting the process of divorce, I know this is difficult, but if your children are young, you may have 10 or more years that you are going to have to co-parent with your ex-spouse. You might as well make the best of it.  You would much rather get along with this person, I assure you.  And your children will appreciate and love you that much more for it. 

It gets even harder when your ex-spouse brings a new person into your child’s life.  Feelings of jealousy begin to erupt.  Instead of succumbing to pettiness, think of it as another person to put love into your child’s life.  This may be very difficult, but be the better person.  Your children will grow to be healthier adults because of all the love they had. 

See these articles for my inspiration:

If you are in need of a family lawyer, call Heather Bryan Law today for your confidential consultation, 863-825-5309, or contact us online.  Heather will stand beside you every step of the way.

Monday, July 10, 2017

Top 10 Things NOT To Do During A Divorce

A divorce is one of the most significant and emotional experiences that a person can go through.  Not only are you going through this life-changing event, but you have concerns about your finances, moving, belongings, and most importantly your children.  It is important not let this process turn you into a person that you don’t want to be—a person that you don’t even recognize.  Be the better person, even if your soon to be ex-spouse is not.  In the long run, you will be a healthier, happier person.  The following list is a compilation of my suggestions of how NOT to act during a divorce.

10. Don’t go pro se…if your spouse has hired an attorney, you have a lot of assets, debt, or income, or if you have children.  Too many things can go wrong.  It is best that you have a skilled attorney that knows the law and can represent your interests and advocate in your behalf.

9. Don’t disparage your spouse or discuss your divorce on social media.  You are hurting and this may seem like a great idea in the moment, but more than likely will come back to haunt you, especially if you have children.  You really don’t want your disparaging posts read in open court. 

8. Don’t flaunt a new partner. You are eager to put yourself back out there and excited when you find that someone.  However, do NOT post pictures of you with that someone on social media, bring that person to court proceedings, and most definitely do NOT bring that person around your children during the divorce process. These activities will instantly turn the most civil divorce into the most contested, drawn out divorce imaginable.  You do not want that.  You can wait until the divorce is final. (And for your own personal health, you really should anyway, but that is another blog topic).

7. Don’t attempt to hide your assets.  MORE than likely, they will be found.  Your spouse’s attorney will hire an expert and the divorce process will get costly and drag on.  You might even end up having to pay for your spouse’s fees and costs.  It is not worth it and you end up paying anyway. 

6.  Don’t fight over the television.  Stuff is stuff.  Is it really worth it?  Are you arguing over items because you are hurting?  Are you really going to pay your lawyer $300.00 per hour over that item?  You could have already replaced that item.  Think about it.  Relinquish your attachment to replaceable items and let the healing process begin.

5. My ex needs to “pay” for what happened. Divorce is painful. You may be hurting from abuse or an affair.  However, for the most part, no fault divorces under Florida law are NOT designed to punish parties.  Assets and liabilities are distributed equitably and alimony is awarded by need and ability to pay. 

4. Don’t wipe out the bank accounts. You are not entitled to all of the money in your bank accounts.  Even if your spouse did not earn the money in the accounts, you are not entitled to all of it.  Florida follows what is called equitable distribution of the assets.  All assets, and debts, will be divided up equitably.  If you and your spouse cannot come to an agreement, the court will decide, and the court does a good job of making sure that is pretty equal.  If you have wiped out all of the accounts and left your spouse with nothing, it will upset the judge and make you look bad, which might not go over so well for you at a future court date.  If you feel like you need to protect money that is in your bank accounts, contact an attorney immediately to find out how to do so.

3. Don’t go into the marital home after you have moved out and take things without your spouse knowing.  Once you have officially separated, you and your spouse need to agree before you just go back into the home and take items.  If you cannot agree, and it is an item that you need, you can talk to your attorney about how to get the item prior to a final judgement. 

2. Don’t disparage your spouse in front of the children.  No matter how hurt you are or what your spouse has done, even if it is illegal, he or she is still the parent of your children.  Nothing will ever change that.  And your children will love their parent, as they should.  If you think, even if rightly so, that your spouse is being a horrible parent, your children do not need to hear that from you.  If you can’t say anything nice, just don’t say anything at all.  One day, your children will figure it all out on their own. And they will love you and appreciate you more for it.

1. Don’t think of the children as “my” children and that your way is the only way. The children are both you and your spouse’s children.  And the court is presumptively going to give you and your spouse shared parental responsibility.  There is probably no way around that, unless you can prove that your spouse is somehow unfit.  It is best that you figure out a way to get along and to find a way to raise the children together.  Understand that in most cases, the court will order a parenting plan that puts both parents in the children’s lives.  So get used to it.  And read this article.

If you are in need of a family law attorney, contact Heather Bryan Law online or call 863-825-5309.