Author: Mary Cosmo, Esquire

Mary A. Cosmo, Esq., is a Florida Supreme Court Certified Circuit Civil Mediator.  This means that Mary A. Cosmo, may be appointed  in cases where the dispute exceeds $15,000.  The parties share the cost of mediation on an equal basis.

What is Mediation 

Mediation is a way to settle disputes and lawsuits instead of going through an expensive trial. It allows you to control decisions affecting your family, finances, business, divorce, custody problems and other aspects of life. A trained neutral professional, Supreme Court Certified Mediator, helps the parties negotiate a settlement. At the conclusion of your mediation, if you reach a settlement, it will be written into a contract signed by both parties. The Goal of mediation is to assist people in conflict find a “win – win” solution to their legal problems without a costly courtroom battle.

What are the Possible Outcomes of Mediation?

• A complete settlement.
• A a partial settlement, wherein you narrow or limit the issues for a trail court.
• Impasse, which means no agreement was reached and the parties will continue to trial.

What to expect?

The Mediator is NOT a Judge and will not decide the outcome of your case.  In mediation the Parties have complete control over their dispute.  However, a mediator will meet and talk with all parties together and, if necessary, separately.  The mediator will discuss settlement options designed to meet each party’s goals and interests.  The process is confidential.  Confidentiality of mediation is essential to an open discussion to assist the parties movement towards a resolution.   This mean that settlement discussions cannot be used against you if no settlement is reached.  Typically, what is said in a mediation stays confidential throughout the remainder of your case with a very few limited exceptions required by law for disclosure.   Mediation is concluded when the parties sign an agreement or when they cannot agree on any solution, wherein they will continue with the court process. In the majority of cases parties are able to settle all issues and future litigation is not necessary.

PLEASE NOTE–When Mary A. Cosmo, is appointed as a mediator and although she is an attorney she is prohibited from providing any legal advise to either party.  Therefore, you must seek separate legal counsel, if you are not already represented. 

The Best Interest of the child in Florida has a statutory definition, which the Florida Family Courts are required to use to determine parental responsibility and timesharing between separating parents.   This means that when you are making decisions for your children and your decision is based on your opinion alone, it may not necessarily be the same as what a Court would do when the Court is requested to decide the same question.

Section 61.13(3), Florida Statutes.  The best interests of the child shall be made by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family, including, but not limited to:
(a) The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and
to be reasonable when changes are required.

(b) The anticipated division of parental responsibilities after the litigation, including the
extent to which parental responsibilities will be delegated to third parties.

(c) The demonstrated capacity and disposition of each parent to determine, consider, and
act upon the needs of the child as opposed to the needs or desires of the parent.

(d) The length of time the child has lived in a stable, satisfactory environment and the
desirability of maintaining continuity.

(e) The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of
either parent with a child.

(f) The moral fitness of the parents.

(g) The mental and physical health of the parents.

(h) The home, school, and community record of the child.

(i) The reasonable preference of the child, if the court deems the child to be of sufficient
intelligence, understanding, and experience to express a preference.

(j) The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to, the child’s friends,
teachers, medical care providers, daily activities, and favorite things.

(k) The demonstrated capacity and disposition of each parent to provide a consistent
routine for the child, such as discipline, and daily schedules for homework, meals, and
bedtime.

(l) The demonstrated capacity of each parent to communicate with and keep the other
parent informed of issues and activities regarding the minor child, and the willingness
of each parent to adopt a unified front on all major issues when dealing with the child.

(m) Evidence of domestic violence, sexual violence, child abuse, child abandonment, or
child neglect, regardless of whether a prior or pending action relating to those issues
has been brought. If the court accepts evidence of prior or pending actions regarding
domestic violence, sexual violence, child abuse, child abandonment, or child neglect,
the court must specifically acknowledge in writing that such evidence was considered
when evaluating the best interests of the child.

(n) Evidence that either parent has knowingly provided false information to the court
regarding any prior or pending action regarding domestic violence, sexual violence,
child abuse, child abandonment, or child neglect.

o) The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending
litigation, including the extent to which parenting responsibilities were undertaken by
third parties.

(p) The demonstrated capacity and disposition of each parent to participate and be involved
in the child’s school and extracurricular activities.

(q) The demonstrated capacity and disposition of each parent to maintain an environment
for the child which is free from substance abuse.

(r) The capacity and disposition of each parent to protect the child from the ongoing
litigation as demonstrated by not discussing the litigation with the child, not sharing
documents or electronic media related to the litigation with the child, and refraining
from disparaging comments about the other parent to the child.

(s) The developmental stages and needs of the child and the demonstrated capacity and
disposition of each parent to meet the child’s developmental needs.

(t) Any other factor that is relevant to the determination of a specific parenting plan,
including the time-sharing schedule.

***This article is not intended to replace legal advise from an attorney.  Every case and Family is different.  If you are facing the same or similar legal question, seek the advise of a martial and family law attorney in your area.

***

Divorcing is a difficult time, specifically when you have minor children and the marital home is now part of the equation.  Where will you and your children live?  Which Party will ultimately get the house?  Can the other Party get excessive use and possession of the home?  Can either of you afford to maintain the home?  Who pays the mortgage?

These are questions that we may be seeing a change in the near future.  The times are changing, and the Courts are slow to progress with the times.  Currently, as was recently quoted by the 2^nd District Court of Appeal, “[t]he general rule is a trial court should award the ‘primary residential parent’ exclusive use and possession of the marital residence until the youngest child reaches majority or is emancipated, or the primary residential parent remarries, unless there are special circumstances.”[1] Special circumstances include the ability of the parties to meet their debts, obligations, normal living expenses, and the expenses of maintaining the marital residence.  In most cases, the exception swallows the rule because it presumes that there is a primary residential parent when parties divorce.  Florida no longer has a typical primary residential parent, wherein the Court would decide that one parent’s home was better than the other parent’s home, and typically that would be the marital home if the parties combined income was sufficient to support such a ruling.

The law now in Florida awards “parental responsibility” to the parents as “shared parenting responsibility unless shared parenting responsibility is a detriment to the child.  Prior to the enactment of “parental responsibility” Florida Courts would award “custody” to a “primary residential parent” and the other parent received a visitation schedule.  Now the general rule is to award both parents timesharing based on the best interest factors enumerated in 61.13 (3).  Therefore, instead of choosing one parent over the other, the Court must make specific findings based on competent substantial evidence to limit one parent’s timesharing over the other parent’s timesharing as both parents have an equal opportunity of parenting, if you will.

This brings me back to the general rule of awarding primary residential parent exclusive use and possession of the marital home until the youngest child emancipates (turns 18).  Yes, in those instances where there is substantial competent evidence to limit one’s timesharing to that which was typically regarded as the primary residential parent then this rule would be typical.  However, the aforementioned questions are not so simply answered, as not only would the Court have to determine (based on competent substantial evidence) that it is in the best interest of the children (which requires considerations of all the factors under 61.13(3)) to limit one parent’s timesharing but the Court must also determine the debts, obligations, normal living expenses, and the expenses of maintaining the marital residence.

If timesharing is awarded to a party equal to that which used to called primary residential parent, and the Parties’ combined finances are such that they can afford to meet all their financial obligations including child support, and all other obligations under the final judgement then yes this general rule still stands.  However, it may be more the exception to the rule than a general rule because more so than not the Courts (at least here in the 20^th circuit) typically start the timesharing analysis at shared parental responsibility and equal sharing of timesharing. Then, the Courts balance both sides, by moving time from one parent to the other based on the factors in 61.13(3).

In today’s world in which we live, it is more typical than not, that both parents are equal caregivers and providers during the marriage and therefore should be equal parents under the law.  After all, parenting is a constitutional right.  Therefore, in order to get exclusive uses and possession of the martial home, you would also have to get an award of timesharing that is equal to that which used to be termed as a primary residential parent.  If the Parties’ timesharing is anything less than what used to be termed as the primary residential parent, then you may be ordered to sell the martial home.  Also, if the both parties cannot afford to maintain the martial home, regardless if the Parties have children, you will likely be ordered to sell.

[1] Coristine v Coristine, 53 So. 3^rd 1204 (Fla. 2^nd DCA 2011).

***Every case is different this article is not intended to be used as legal advise.  If you are faced with a similar legal issue, please seek the advise of an experience martial law attorney who can provide the legal advise you need.***

So, you have discussed with the other parent that you want to relocate with your child and to your surprise they are in agreement with your move.  What do you do next?  Do you move.  Will the Court accept your verbal agreement? 

You must put your agreement in writing and there are specific statutory terms you must include in your agreement and you must file the agreement with the Court to satisfy the relocation statute, even if you are in agreement.  WARNING: failure to put your agreement in writing and file with the Court can have serious consequences, if later the other parent decides to file for contempt and request return of the child(ren).

61.130001(a) If the parents and every other person entitled to access to or time-sharing with the child agree to the relocation of the child, they may satisfy the requirements of this section by signing a written agreement that: 1) Reflects consent to the relocation; 2) Defines an access or time-sharing schedule for the non-relocating parent and any other persons who are entitled to access or time-sharing; and 3) Describes, if necessary, any transportation arrangements related to access or time-sharing. (b) you may also need to request a Court to ratify said agreement (this can be done with or without a hearing).

DEFINITIONS

(a) “Child” means any person who is under the jurisdiction of a state court pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act or is the subject of any order granting to a parent or other person any right to time-sharing, residential care, kinship, or custody, as provided under state law.

(b) “Court” means the circuit court in an original proceeding which has proper venue and jurisdiction in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act, the circuit court in the county in which either parent and the child reside, or the circuit court in which the original action was adjudicated.

(c) “Other person” means an individual who is not the parent, but with whom the child resides pursuant to court order, or who has the right of access to, time-sharing with, or visitation with the child.

(d) “Parent” means any person so named by court order or express written agreement who is subject to court enforcement or a person reflected as a parent on a birth certificate and who is entitled to access to or time-sharing with the child.

(e) “Relocation” means a change in the location of the principal residence of a parent or other person from his or her principal place of residence at the time of the last order establishing or modifying time-sharing, or at the time of filing the pending action to establish or modify time-sharing. The change of location must be at least 50 miles from that residence, and for at least 60 consecutive days not including a temporary absence from the principal residence for purposes of vacation, education, or the provision of health care for the child.

The Short answer is: Maybe.  The Relocation Statute 61.13001(e) defines relocation as:

“a change in the location of the principal residence of a parent or other person from his or her principal place of residence at the time of the last order establishing or modifying time-sharing, or at the time of filing the pending action to establish or modify time-sharing. The change of location must be at least 50 miles from that residence, and for at least 60 consecutive days not including a temporary absence from the principal residence for purposes of vacation, education, or the provision of health care for the child.”

To clarify, there are three factors to consider before triggering the relocation statute.  First, the statute must be triggered by a “relocation after the filing of a petition.” To simplify, you must have had a circuit court case either opened and pending or has the circuit court has issued a final order.   If you are married and move prior to the date of filing for divorce or paternity action (even if the father has signed the birth certificate), you have not triggered the relocation statute.  The date of filing is the triggering factor.  If you move after the date of filing of either a paternity or divorce petition, without permission from the other parent, you may be relocating in violation of the relocation statute.  If you have a court ordered parenting plan (temporary or permanent) and then move, you may be violating the relocation statute.  If you plan to move, contact an experienced relocation attorney for guidance prior to your move.

The other two triggering factors are “the number of miles” away you relocate AND “the amount of time you are gone from your residence.”  For your relocation to trigger the relocation statute, your move MUST be 50 miles from your residence (at the time of your last Court order) AND you are gone for a minimum of 60 days.  So, you would have to be relocated more than 50 miles, as the crow flies (in a straight line) for two (2) months before triggering a violation of the relocation statute.

Relocating is a difficult area of law and you should have an attorney who has experience litigating relocation matters.  Call me, I can help.  Mary A. Cosmo, Esq.

Child Support is based on the Florida Child Support Guidelines established by the Florida legislature.  Basically, your child support amount will be calculated according to Florida law.  To calculate the amount one party pays to the other, you will need both parties’ gross income subtract allowable deductions (Health insurance, daycare, involuntary retirement, and limited other deductions) then then Federal Tax is applied and deducted.  (Attorneys, Department of Revenue for Child Support Enforcement, and Courts have a program that does this tricky part).  Once you have the combined net amount (total combined incomed less allowable deductions and taxes).  You look up the total obligation on the chart provided in Statute 61.30 for the number of children you have.  The legislature has provided a chart that is the presumptive child support amount based on the total combined income of both parties.

Example:

 

 

Your allocated obligation is based on the percentage on income to both parties combined income.  For example, if party A make $200.00 per month and party B makes $600.00 per month, your percentage of support is based on the same percentage: A=25% and B=75% of the total combined income (as if you were still together as a family unit).  If your total support obligation for one child is $190.00 per month, then Party A pays (25% of $800.00) $47.50 per month because their income is 25% of the total combined income of both parties; and, B pays (75% of $800.00) $142.50 per month because party B’s income is 75% of the parties total combined income.

If Party A has the majority timesharing then rather than paying $47.50 to the Party B, this amount is assume that Party A is already paying this amount for the child’s needs.  Party B then pays to Party A the remaining amount of $142.50 as stated in the calculations.

(Other factors added to this calculation are health insurance for the child and daycare expenses, which are also shared according to the parties combined income percentages and added to the support amount).

Florida does allow for another calculation to include timesharing for both parties is over 20%.  In theory, the law presumes both parties are supporting the child according to their respective timesharing allocations and factored into this calculation.  This can get complicated.

For child support questions you should contact an experienced child support attorney who can guide you through the confusing child support guidelines.  Mary A. Cosmo, Esquires, has successfully handled several child support cases.  Mary A. Cosmo, Esq., Ft. Myers Family Law Litigation Attorney.