Florida Criminal Defense and DUI Defense Blog

28Mar, 22

Florida Famly LawToday I’m talking to two up and coming, very powerful young lawyers, Wendy Diaz and Meredith Jones.

MK: Welcome, ladies. What would you like to talk about today?

WD: Well, family law has been undergoing some changes. And it looks like Governor DeSantis is doing some more changes that can affect some family law cases in regard to younger kids in school.

MK; What’s the governor trying to do?

MJ: So, there’s currently a bill on the governor’s desk that, among other things, would put a 50/50 presumption of time sharing in place for family law cases.

MK: 50/50 presumption means in a custody dispute, the judge would have to start from a position of expecting to order 50/50 shared equal time parenting,

MJ: Right. And so, Florida has gotten away from the terms “custody” because it’s supposed to be kind of a kinder, gentler approach to children and parenting. So there is already the presumption that there’s going to be shared parental responsibility, in any case where there’s a divorce or custody-type matter happening.

MK: And shared parental responsibility means that both parents are supposed to have input in the major decisions affecting the well being of the children, regardless of which parent has the children living with him or her more.

MJ: Exactly. And then there’s also the idea that both parents are supposed to have substantial time with their children.

MK: Okay. And that’s the current landscape.

MJ: Right.

MK: So in order for one parent to have sole responsibility, today, before any changes.

WD: It would be an egregious ruling by the judge.

MK: Which means it would have to be something seriously wrong with one person’s parenting abilities, or availabilities.

MJ: Yes, and usually, I would say in any case that I’ve seen where there’s sole parental responsibility over even some aspect of the child’s life, it’s because there’s been evidence presented to the court that the one parent does not have the capability to make decisions in that area. For example, if the child has been primarily spending time with one parent, and their schooling has just completely taken a dive. They’re failing school. They’re missing all of their marks. And the parent is just not doing anything to try to rectify that, then you could be looking at a situation where the other parent then gets to make all the decisions regarding the child’s schooling.

WD: Another example would be in medical decisions. There is a case right now where one parent is a Jehovah’s Witness and the other parent is not. And the parent that is not the Jehovah’s Witness does have the decision making authority for medical reasons because of the religious difference between this parent and the other co-parent who’s a Jehovah’s Witness.

ML: And so in that situation, a judge is predisposed to find that modern day medical treatment outweighs the other parent’s religious beliefs.

MJ: Usually, though, there still has to be some kind of showing of harm. We do have, obviously, religious freedom in this country. So it’s not going to be an automatic “this person gets to make the decisions”. But if the parent with the more restrictive medical kind of ideas has been shown to not make responsible decisions regarding their child, then those decisions might be taken away from them.

MK: For example, if an illness or injury has already gone untreated.

MJ: Exactly.

MK: How about if one of the parents is just unavailable for visitation, such as a parent in prison or a parent in the military service that’s been shipped overseas? Does that parent lose parental rights during that period of unavailability?

MJ: No, they do not lose parental rights, certainly. There are twenty factors that are in the Florida Statutes that determine what a judge should look at when creating or approving a parenting plan, including a time sharing schedule.

MK: So these are twenty factors that a judge is supposed to take into account.

MJ: Yes.

MK: Does the current statute give the judge any guidance as far as which factors are more important? Or are they all supposed to be the same importance? Or can they vary judge to judge?

WD: Yes.

MJ: It pays for a family lawyer, then, to know what the judge considers important or more important than others.

WD: Very much so. And the last subsection is always the catch-all, anything that the judge can determine a reasonable factor for the best interest of the child, because that’s always the goal is – what is in the best interest of the child?

MK: So if one of them is a really staunch and obnoxious Duke fan, the judge can deny them all kinds of things, because that’s detrimental to the child.

MJ: You better help their Carolina fan.

MK: Well, I mean, everybody hates Duke. So tell me what is the governor considering changing from the status quo?

MJ: So, a lot of people seem to have the impression that, because Florida already has shared parental responsibility and substantial time sharing as kind of the default, that that means we’re starting at 50/50, but that’s not the case. It would be writing a presumption into the law that we do start from that presumed 50/50 split of time between parents. It does not get rid of those twenty statutory factors that Wendy and I spoke about, though, those would still exist.

MK: Those factors might give a judge a reason to do something other than 50/50.

MJ: Right.

MK: Okay, that sounds to me like the equitable distribution statute, where equitable doesn’t literally mean equal, but there’s, and I’m not sure if this is still in the statute or not, but there seems to be a presumption that a starting point is that equitable does mean equal.

MJ: Yes.

MK: And a judge can only do something other than 50/50 in dividing debts and assets, if there’s some evidence presented giving the judge a reason.

MJ: Right.

MK: So, what Governor DeSantis is considering is this change that would put the same kind of decision making in place in a parental responsibility or what we used to call a custody battle.

MJ: Right.

MK: Okay.

WD: The biggest challenge I see with that is, if the parents aren’t locally assimilated together. They don’t live in the same town. It’s maybe more of an hour’s driving distance. I think those cases are going to have a really big struggle, because then one parent is going to have to give up a substantial amount of vacation time and be the de facto disciplinarian parent, where the other one is the de facto fun parent.

MK: But that’s been the case all along. This is just changing the starting point for these cases. And really, it sounds like it’s really changing the starting point only for those that go to trial.

MJ: Right. And again, just like most areas of the law, the vast majority of family law cases do settle. I anticipate, though, that this can lead to an increase in litigation, because many times when a couple is raising a child together, one parent kind of becomes the default parent, as I call them. And they’re the ones that just carry a lot of the mental load over the child and their daily activities and managing that. And the other parent, you know, relies on them. And when you’re together raising a child or children, that makes sense, you know. You can’t both be thinking about everything all of the time, when it comes to running a household and running a family. But if the non default parent thinks that, well, I don’t need to really think about this, I’m going to get 50/50, and they’re now starting from that presumption. And so now the other parent, the parent who has taken on more of the responsibility, might be more inclined to have to fight and argue, and cause an increase again in litigation. And that can really drive up costs for families.

MK: It can and families ended up spending money on lawyers that would be, frankly, would be better spent on things for the kids.

MJ: Absolutely.

MK: But if you’re gonna have to play in family court, you need to play to win. And so this is still going to increase the value of good lawyers, lawyers who know their job, who know the law and who know the judge. And I don’t mean, you know, there’s an old joke that, a good lawyer knows the law. A great lawyer knows the judge. But this is not about friendship with the judge. This is about knowing the judges point of view on parenting, what matters and what doesn’t matter.

MJ: Absolutely.

MK: And what matters more.

MJ: And as Wendy pointed out, the long distance parenting plans can be an issue. A lot of judges do not want to see children spending significant time going back and forth in the car. They like to try to reduce that if possible. And the other thing about 50/50, and he brought this up, Mike, is it is similar to the rule with Financials. But you can’t split time with the child the same way that you split financials. What does 50/50 look like in a time sharing schedule? It can be every other day. It can be every other week. It could be six months on, six months off, although I’ve never really seen that. So you have to really say, there’s still a lot to negotiate there. There’s still a lot to really delve into with a case to figure out even if we say, “Okay, 50/50.” How is that actually going to play out with this family?

WD: To what you were saying with it increases litigation, if, for example, one parent does want to separate and the other one does not want to separate, the 50/50 custody presumption is going to be more than likely what the parent that wants to stay, hangs his or her hat on, to either drag it out, get the well to run dry, and at the end, either settle to whatever him or her wants, or have the petitioner issue a dismissal and they stay married.

MK: This is starting to sound to me a lot like how I used to talk to my accountant about an IRS audit. And the account used to suggest things that would increase my chance of winning an audit and I said, “I don’t want to win an audit. I don’t want to have one.” Family Court in a custody dispute feels the same way.

WD: It is. You have the financials. You go through the grid sheets. You have to take your assets and your liabilities, and add them all together. And at the end, you get a dollar amount.

MK: Other than the prospect of it increasing the uncertainty and increasing, therefore, the amount of litigation, and the cost of litigation, what’s the reason? What does this statute intend to improve?

MJ: I really don’t know. I’ll be honest with you.

MK: Why does the governor want to do it? I mean, I guess to the naive or the uninformed, it sounds on its face like it’s a more fair way to do it, starting at 50/50. But as a practical matter, it doesn’t sound that way.

MJ: I think that it has the appeal of seeming more practical. It is also part of a larger bill on alimony reform, which we haven’t even talked about. And it’s interesting because the last time a very similar version of this was up at the Governor’s desk in Tallahassee, Rick Scott vetoed it. And part of the reason he gave us vetoing it was because of the 50/50 timesharing presumption, because family law practitioners generally are very much against it. The Family Law Section of the Florida Bar has come out against it, saying it is not in the best interest of children and families. So they’ve tried again to get it passed with this 50/50 presumption. And I think it does have an inherent appeal to fairness, and an inherent appeal to what people think the law already is. But it just doesn’t seem to make a lot of practical sense.

WD: Yeah, I think if the governor does sign this, it’ll take the statutes that are on the books and complicate them even more and make them even more litigious.

MK: And that makes it harder to give good legal advice to your client,  because the outcomes in court are less predictable.

MJ: Absolutely.

MK: And after all, that’s what we all want is we want predictability. We want to be able to tell our clients based on these facts and circumstances, this is what you can expect a judge to do. Settling a case amicably, or reasonably amicably, becomes a lot easier iIf both sides have the same idea that this is what a judge is likely to do with this sort of a situation.

WD: And this plus all of the stereotypes that we have in family law with one parent receiving certain rights over another, in addition to this bill, it will just increase more of the “well, the law says this, the law says that” when the people involved are not attorneys, and they kind of just read what they see on the news.

MK: And we hear almost daily from one client or another, “my uncle, my cousin, my third person’s best friend knows that this happened.”

MJ: Yeah, it’s a really interesting time to be advising clients, because if this bill is signed, it will go into effect on July 1. And so I’m telling clients now, “Well, this is the current state of the law. But there’s this bill and we’re not exactly sure.”

MK: Well, let me ask this question that might become important to some people that are thinking about what to do now. If this law passes and takes effect July 1, does it take effect on cases filed after July 1? Or does it take effect on cases that are filed this afternoon, that are still pending and haven’t gone before the judge on July 1?

MJ: My reading, it includes the ones that are already filed and just haven’t been before the judge.

WD: I would agree.

MK: So, nobody needs to race in to file before the first of July to avoid this?

MJ: No.

MK: Okay. Have either of you heard, formally or informally, an opinion from any of our local family court judges on what they think of this bill, how they think it changes anything?

WD: I have not. They’ve been pretty tight lipped.

MK: I would love to have the same conversation another day, after we see whether this bill is going to pass and be signed into law.

MJ: Yeah, I would, too. And it’ll be interesting, because many of our family court judges here in the 19th are pretty experienced in Family Law. And I don’t wonder if it’s not going to make much of a difference to them. They already have seen so many cases, and the same factors are still going to be important to them. But again–

MK: It’s going to affect how court orders get drafted, the language that’s used, and mediation agreements, too.

MJ: Right, and again, I think it’s going to potentially cause a lot more cases to have to come before the judges, if one party is just really set on that 50/50 and won’t settle for something else.

WD: Yeah, I really anticipate that, at mediation, this could be the reason why there will be an impasse. It won’t be the money. It will be the children, because having the children also entails how much child support one receives or pays out.

MJ: Right.

MK: That’s true, Wendy, but that’s been the case for a while. That’s a reason a lot of these cases don’t settle. A lot of the ones that don’t settle.

MK: Well, ladies, I want to have you back again one day soon so we can talk about alimony reform. I think it was Johnny Carson who said, “Alimony is like buying oats for a dead horse.” But we’ll talk about that another time.

Attorney Mike Kessler
Written by: Attorney Mike Kessler

Attorney Kessler has been practicing criminal law in Florida for 30 years. He is recognized as is a leading authority on drunk-driving defense as well as a founding member of the Saint Lucie County Association of Criminal Defense Lawyers and co-author of The DUI Book: Florida Edition, the definitive resource on DUI in Florida.

To speak with Mike, call 772-466-4900 or click here for a free consultation.

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