Do child support payments increase over time?

Whether you are going through a proceeding such as Paternity, Divorce, or a Title IV-D action, child support in Florida is calculated using the Florida Statutory Guidelines as explained in Florida Statute 61.30.

Once child support is calculated within your action and adopted by final judgment, the child support will remain that amount, unless modified, generally until the child reaches the age of 18 years; or not to exceed 19 years, if the child is still a dependent high school student performing in good faith with a reasonable expectation of graduation before the age of 19. F.S. § 743.07.

Other exceptions to termination at 18 years of age may include prolonged child support obligations if the child is dependent and the dependency is because of a mental or physical incapacity which began prior to such person reaching majority. Either way, the amount would remain in effect from the last Court Order/Final Judgment on the court file.

So, do child support payments increase over time? One simple answer would be, not unless your previous Order/Final Judgment is changed. Or maybe you fall behind and you start incurring arrears. Arrearage payments could be tacked onto your on-going support obligation. Also, if you are making more money now than you did at the time the child support was last calculated, it is possible for your child support to go up. In paternity and divorce matters, one of the parties would have to file a Supplemental Petition for Modification and allege, among other things, that there has been a substantial change in circumstances. In those cases, “the guidelines may provide the basis for proving a substantial change in circumstances upon which a modification of an existing order may be granted. However, the difference between the existing monthly obligation and the amount provided for under the guidelines shall be at least 15 percent or $50, whichever amount is greater, before the court may find that the guidelines provide a substantial change in circumstances.” F.S. 61.30(1)(b).

In those cases, modification requires at least one of the parties to bring new proceedings before the court requesting such a recalculation of child support. On the other hand, in Title IV-D cases, pursuant to F.S. 409.2564(11)(a) and F.S. 61.30(1)(c) child support may be reviewed without the necessity of providing substantial change of circumstances and be modified if the support differs by at least 10% but not less than $25.00 from the amount to be awarded under F.S. 61.30. Furthermore, “the Department of Revenue shall review child support orders in IV-D cases at least once every 3 years when requested by either party, or when support rights are assigned to the state under s. 414.095(7), and may seek modification of the order if appropriate under the child support guidelines in s. 61.30. Not less than once every 3 years the department shall provide notice to the parties subject to the order informing them of their right to request a review and, if appropriate, a modification of the child support order. The notice requirement may be met by including appropriate language in the initial support order or any subsequent orders.” F.S. 409.2564(11)(a).

No matter which type of case you have, child support is calculated pursuant to F.S. 61.30. If you, or someone you know needs help with an initial or post judgment matter concerning your child support, don’t hesitate, call Men’s Rights Law Firm today.

How can one give up their parental rights?

Parental rights are fundamental, protected by the Florida Constitution, and thus are not easily relinquished. In fact, there are very limited instances in which a parent may give up their parental rights voluntarily. Sometimes we are asked whether giving up parental rights would result in eliminating the responsibility for supporting a child, and while the answer is that if one were able to give up their parental rights the result would be that parental responsibilities would also disappear, the ability to simply walk away from a child without repercussions is largely unknown under Florida law. Once a legal parent has been established (maternity is established at birth, paternity is established by marriage at the child’s birth, or by court order), disestablishing it is limited. Four methods (adoption, termination, judicial disestablishment, death) are potentially available.

• Death
o This one is obvious. If you die, you no longer have parental rights or responsibilities, other than those that you may have contracted for which continue beyond death (Trust Agreement, insurance policy, contractual obligations, etc.).
o Grandparental rights, which are extremely limited, are not automatically terminated upon the death of a parent.

• Judicial Disestablishment of Paternity
o If you agreed to become the legal father of a child because you were told that you were the biological father, and then later you learned that someone other than you is the biological father, then you can petition the court to disestablish paternity.
o Only a male may do this. There is no female equivalent.
o Any DNA testing that you will base your claim upon must have been performed within 90 days of filing the petition.
o You must be able to show that any financial responsibility that has been judicially required of you has been satisfied to date, or that any arrears are the result of being unable (not unwilling) to pay.
o You cannot have previously acted to block the true biological parent from asserting parental rights.
o You cannot have voluntarily assumed, through marriage to the mother or adoption or otherwise, parental rights and responsibilities for the child.

• Judicial Termination of Parental Rights
o If you have been accused of egregious abuse, neglect, or abandonment, the state (through the Department of Children and Families) can have a court terminate your parental rights, which can be accomplished by consent or after a trial.

• Adoption
o If another person is willing to voluntarily assume your parental rights and responsibilities (such as a future spouse of the mother of your child) then you can consent to the adoption.
o Under those circumstances, your parental rights and future responsibilities are terminated when the court terminates your rights (a necessary step in an adoption proceeding, which may happen before or at the same time as the completion of the adoption).
o You cannot simply consent to a potential adoption that may or may not take place in the future. The adoptive parent must be known before you can consent to the adoption.

Duke v. Duke

In Duke vs. Duke, The trial court erred on the face of the Final Judgment of Dissolution of Marriage (no trial transcript was provided, so only errors appearing on the face of the order could be remedied):

1) Alimony: In awarding alimony, the court failed to impute income to the wife based upon income that she would have realized from items awarded to her in equitable distribution. The case is remanded for the trial court to determine how much interest she could earn from the assets without invading the principal;

2) Attorney’s fees: The trial court failed to make sufficient findings to support the award, so the case is remanded for those findings. However, The findings of need and ability to pay were not disturbed;

3) Life insurance: The trial court failed to make specific evidentiary findings regarding the availability and cost of insurance, the obligor’s ability to pay, and the special circumstances that warrant the requirement for security of the obligation; and

4) Parenting plan: the trial court failed to make the required findings under 61.13, and the timesharing schedule lacked specificity

Duke v Duke

Do fathers have the same parental rights as mothers?

The answer to this question is not a simple one and can vary depending on the facts, as well as which statute you are focusing on. For the purposes of this blog, the focus will be on a man’s parental rights under Florida Statute 744, and how it differs generally from Florida Statutes 61 and 742.

Generally speaking, if a child is born out of wedlock, then there may only be a presumption of paternity if the putative father is listed on the child’s birth certificate. Under chapter 742, this doesn’t necessarily mean that the father is simply given all relevant rights of child rearing however. Under this section of the law, a man will need to file a petition with the circuit court to establish paternity. Until that time however, a mother may be considered the natural guardian and may effectively do whatever she pleases, including taking the child out of county or State without your permission or knowledge.

However, if the child is born during the course of the man’s intact marriage to the mother, then the child is presumed to be born of that marriage. This means that a Father whom is about to go through, or is going through, a divorce may begin that process with the same rights to the child as that of the mother. This applies even if a child is born to an intact marriage by a man other than the husband. In that case, the actual biological father may be entitled to even less, as the Husband would be considered the legal father and presumed to be the biological father.

Finally, how does chapter 744 differ from the above and do fathers have the same parental rights as mothers?

Florida’s guardianship statute begins with a very similar message as the above in that chapter 744 provides, “…the “mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child…” Fla. Stat. §744.301(1). However, the guardianship statute differs ever so slightly in that even though it appears to favor the mother on its face, the application of that statute in the case law appears to provide greater rights to a putative father than the other two previously mentioned statutes. For example, in Stewart v. Walker and State v. Earl, “…when an unwed father demonstrates and carries out the requisite settled purpose to be a father, he comes within the first sentence of the statute, making him a natural guardian along with the unwed mother.” Stewart v. Walker, 5 So. 3d 746, 749 (Fla. 4th DCA 2009). See also, State v. Earl, 649 So. 2d 297, 298 (Fla. 5th DCA 1995).

Regardless of whether you are a husband or a father, or both, don’t hesitate to contact Men’s Rights Law Firm today to help determine your rights. 239-829-0166.

HOW CAN WE PREVENT THE STATE FROM TERMINATING OUR PARENTAL CUSTODY RIGHTS TO OUR CHILDREN?

So, DCF has begun proceedings to terminate your parental rights (TPR) because of alleged egregious abuse, neglect or abandonment. If you have previously been granted a case plan, and you simply did not previously follow it, you have the opportunity to delay the TPR by making an honest effort to comply with the case plan. If you do not have a case plan, though, your only method of delaying TPR is to insist upon and then participate in the TPR trial. If you are able to prevail in the TPR trial then you may instead be granted a case plan to reunify, and if you complete the case plan, then TPR will be avoided. At worst you will have delayed the TPR until after the trial.

Case plans where egregious abuse, neglect or abandonment are concerned typically have tasks that include parenting courses, drug/alcohol abuse treatment, and mental health treatment. Many parents are unable to go through with the tasks; as they are often difficult, and many people would rather continue with the unhealthy behavior rather than care for their children. But if the penalty for refusing to comply with the case plan includes TPR, then many parents change their attitudes and instead start working in earnest on the case plans. Successful completion of the case plan will most likely result in an end to the TPR proceedings, in favor of reunification efforts.

I have met parents who, when faced with a choice of either discontinuing their drug usage, for example, or losing their children, will turn to me and say “can I really continue using drugs if I give up my kids?” That is a situation that will shock most people who hear that, but I have come to learn that the reality of addiction is that some of those who are addicted would rather continue in their addiction than get treatment. Or perhaps the desire to raise children is less powerful than the desire to continue using drugs at that particular moment in time. Whatever the reason, the negative motivation must be overcome if one is to avoid TPR. Contact Men’s Rights Law Firm to discuss your options today. 239-829-0166.

FATHER’S RIGHTS IN FLORIDA CUSTODY CASES

What are the rights of fathers who are not on the child’s birth certificate? What are the rights of fathers to attend pre-natal doctor appointments for the mother and unborn child? What are the rights of non-biological fathers? What are the rights of expectant fathers? These are all very typical questions that we encounter every day as Family Law Attorneys. The answers may surprise you.

The parental rights of fathers depend firstly upon marital status. If a man is married to a mother of a child, which child was born during the intact marriage, then the man is considered the legal father of the child, regardless of whether he is the biological father. In such instances the legal father has all of the rights to the child, and may attend all of the child’s medical appointments. This is true regardless of whether or not the man is named on the child’s birth certificate, although his non-appearance on the birth certificate becomes a proof problem if the mother is uncooperative.

Three terms are important to understand: “Legal Father” refers to a man who has been awarded that title by a court, or who is married to the mother at the time of the child’s birth. “Biological Father” is the term associated with the man whose sperm connected with the mother’s egg which resulted in the conception of the child. “Putative Father” is the term attached to a man who is seeking to establish himself as a legal father but before that status is determined by the court. A putative father can be converted to a legal father if he can properly establish his claim. But a legal father (the man married to the mother at the time of birth) can effectively block a putative father from becoming a legal father if he so desires. A legal father can be terminated as a legal father, but only voluntarily in the instance of an adoption, or involuntarily as the result of a finding that his rights should be terminated due to egregious abuse, neglect or abandonment. A biological father has no rights to the child whatsoever, except as determined by the mother, unless they are also the legal father. Biology alone confers no rights.

One must also consider the presence of the name of a father on the child’s birth certificate. When a child is born, a form is presented to the mother (typically presented by a Social Worker) for her signature and that of the person she indicates is the father. A signature by the father will result in that person being placed on the child’s birth certificate as the legal father. The mother may choose to name someone or not name someone at her discretion, so if she names nobody then there will be nobody initially listed as the legal father. That can often be amended subsequently, but until it is amended there is no certified proof of legal fatherhood. If she is married at the time of birth, but the father is not present to sign the document, then he will not be on the birth certificate but he can later have his name added and the birth certificate amended.
Consider the following scenarios:

1. A child is born to an unwed mother, and nobody is named as the father on the birth certificate.
a. In this scenario, the child does not have a legal father.
b. Children with that status were once known as “bastards”, but that term has morphed over the years. They are now known as “illegitimate”, but even that term is sometimes considered politically incorrect. A new term may soon come into vogue.

2. A child is born to an unwed mother, and X is named as the father on the birth certificate.
a. X is the legal father.
b. The child is legitimate, and maintains that status, regardless of any other legal changes that may occur in the future

3. A child is born to a wed mother, and her husband is named as the father on the birth certificate.
a. The husband is the legal father.
b. The child is legitimate

4. A child is born to a wed mother, and nobody is named as the father on the birth certificate.
a. The husband is the legal father, but proving this may be difficult without the mother’s cooperation.
b. The child is legitimate

5. A child is born to a wed mother, and X, who is not her husband, is named as the father on the birth certificate
a. X is the legal father, but the husband could potentially replace X as the legal father
b. The child is legitimate

The child’s legitimacy is a separate but related issue. One of the strongest presumptions in the law is that a child that is legitimate remains legitimate despite any change or purported change to the status of its legal father. The legal father is always a proper party for a paternity case, and they have the right to challenge a purported father’s right to establish paternity. So, in the instance where someone believing himself to be the biological father of a child born to a wed mother files an action for paternity, the mother’s husband, as legal father and a necessary party to the proceeding, has the right to contest the purported father’s right to bring the paternity action in the first place, or to even obtain a DNA test to establish biological filiation. One of the most effective ways for a woman to keep a man out of his biological child’s life is to marry someone while she is pregnant and to have that man assume legal fatherhood to effectively block bio-dad from even making an attempt at establishing paternity.

After conception but before a child is born, there is no issue of paternity, so questions about the purported-biological father’s right to attend antenatal (or prenatal) doctor appointments is not one that can be resolved by a court. In those instances the mother alone may determine whether or not anyone accompanies her to such appointments. No person has standing to request that a court require a woman to allow anyone else to attend doctor appointments. Of course, if the mother is a minor, or suffers from some mental incapacity, then a parent or guardian can intervene. Expectant fathers are similar, in that they have no rights to the as-yet-unborn child yet (due to the fact that the child is in utero). The mother is in complete control.

Non-biological fathers, such as step-fathers or legal strangers (perhaps close family friends), have no rights regarding the child that can be adjudicated by a court, unless they are the child’s legal father (such as in the instance where a wed mother delivers a child during the intact marriage but her husband is not the biological father). In such instances, the mother alone may determine what, if any, “rights” the non-biological person has (again, except if the man is the legal father b virtue of being her husband when the child is born).

Paternity is a potentially sticky matter, which matter is best cleared up quickly and soon after the child’s birth. Later establishment of paternity can be accomplished, but as noted above, only in some circumstances. A man thus has no automatic rights to a child whom he helped to conceive; his rights must be legally established. Mothers of children thus have rights that are not the equivalent of, and in fact are often superior to, the rights of a father. The fact that a child comes from the womb of the mother is enough to confer rights to her, but the fact of a man’s contribution of his sperm to the conception of that same child does not, in and of itself, confer any rights.

HOW CAN I ALLOW MY MOTHER TO HAVE GUARDIANSHIP OF MY CHILD WITHOUT LOSING MY PARENTAL RIGHTS?

As a parent, and subject to the consent of the other parent (if there is another legal parent present), placement of your child with another is completely within your discretion. So, if you want your child to live with, and be cared for by, any other person, you are free to make that decision. It is only when you want that other person to be able to exercise parental rights, for example the right to consent to medical treatment or to enroll the child in school, that you must be concerned about your legal requirements. Guardianship is one way to accomplish transferring parental rights/responsibilities, but there are several other mechanisms that are also available.

Guardianship is the act of appointing some person to act as Guardian (in the place of the Court) of a “vulnerable person” (which could be a minor, an elderly person, or a mentally incapacitated person, etc.). Parents are natural guardians of their children, but if they desire that some other person act as guardian then they can consent to an application of guardianship by that other person. So, if a parent wanted their child to be under the guardianship of the child’s grandmother, for example, they could consent to the application of that grandmother to be appointed guardian. Guardianship can be a cumbersome process, though, as it includes the need for certification, education, and the filing of plans that may include financial arrangements. Guardianship can also be cumbersome when one wants to terminate it and return to the status quo ante.

A less cumbersome procedure is one commonly referred to as a 751 proceeding. “751” refers to the chapter in Florida Statutes where the procedure is described. Under Chapter 751, an extended relative may petition the court for custody of a minor child. The process can be contested or uncontested. The order ultimately entered (either upon consent or after a hearing establishing appropriate grounds) would grant to the extended relative temporary custody of the child and the right of that person to consent to medical treatment, obtain the child’s relevant records, enroll the child in school, or to do anything else necessary for the care of the child. Such an order would also detail the temporary nature of the custody, by setting guidelines for a parent to follow in order to have the child placed back in their custody. The order can also be for concurrent custody, which would allow the parents and the other relative to provide for the child concurrently. In 751 proceedings there may be a requirement that the parent be able to prove fitness in order to regain custody, so consenting to such a procedure, eliminating the need to prove fitness, may be the way to go for a parent that wants to give away custody but retain the right to simply change their mind in the future.

Another alternative would be for a parent to sign a document that voluntarily grants to another person the same things that a court in a 751 proceeding would order. No judicial involvement is needed for such a procedure. This method, though, may leave third parties (like schools or medical providers) in a bind because they may not be willing to accept the document as proof needed to consent, etc.

If the state (DCF) has become involved, you may consent to the state placing the child in a relative’s care. In such a situation you will likely be granted a case plan, including tasks that you will need to perform in order that your parental rights will not later be terminated. So long as you follow the case plan, your parental rights should not be terminated.

Contact Men’s Rights Law Firm in Cape Coral, Florida to determine which method is right for you.

WHAT ARE GRANDPARENTS’ CUSTODY AND VISITATION RIGHTS IN FLORIDA?

Grandparents have the right to be judicially granted visitation with their grandchildren, but only under limited circumstances. When children have been removed from their parents’ home due to abuse, neglect or abandonment, the court may provide grandparents visitation under Chapter 39. Also, a grandparent of a minor child whose parents are deceased, missing, or in a persistent vegetative state, or when one parent is deceased, missing, or in a persistent vegetative state and the other parent has been convicted of a felony or an offense of violence, may petition the court for court-ordered visitation with their grandchild under Chapter 752.
In 1998 (Von Eiff vs. Azicri, 720 So.2d 510 (Fla, 1998)) the statute (Chapter 752) purporting to grant grandparents to right to judicially impose visitation rights, over the potential objections of the children’s parents, was determined to be unconstitutional (In 1996, part of the statute was declared unconstitutional in Beagle vs. Beagle, 678 so. 2d 1271 – Von Eiff finished the process by declaring the entire statute unconstitutional). Thereafter the statute remained on the books, but effectively there was no enforceable statute granting grandparents visitation rights that were judicially imposed, until 2015, when a new statute was enacted as noted above.

So, if DCF is involved because children have been removed from their parents, grandparents can be granted visitation with their grandchildren over any objection of the parents. And grandparents may also request that the court grant them visitation of their minor grandchildren if a parent has died or been incarcerated or is in a persistent vegetative state or is otherwise unavailable.
In a situation where a minor grandchild has both parents present, and those parents do not desire that the child’s grandparents have visitation, there is no opportunity for a court to impose grandparental visitation. If you have questions about your situation, contact Men’s Rights Law Firm today for a free phone consultation.

WHAT ARE MY CHANCES OF GETTING 50/50 CUSTODY OF MY CHILD IN FLORIDA?

While the courts are moving away from automatically assigning Father’s a weekend only relationship with their children, an equal timesharing schedule is not always easy to obtain. The Court must consider all of the factors in Florida Statute 61.13(3)(a-t) in order to determine the best timesharing schedule for the children. In some families, the parental roles have been divided along traditional lines, with the Mother being responsible for the bulk of the child rearing and the Father being responsible for the household. However, with many families, both parents work and the responsibilities are shared.

When a couple decides to separate, there are many things that the Court will consider. To have the best chance of receiving an equal timesharing schedule, you should become familiar with the statutory requirements for the Court and also to start the separation with as much time as you can get with your children. If your ex resists, you should file a Motion for Temporary Timesharing as soon as possible and continue to ask for additional time, in writing. Once you get to court, you can then show the judge that you have been requesting the time but your ex is not allowing it.

You should also become familiar with the children’s doctors, teachers, coaches, and schedules. If you have not regularly communicated with these people in the past, introduce yourself (you can send a simple email). Let them know that there are changes to your family structure and that you are available and wanting to take an active role in your children’s activities. If you are able to do so, now is a good time to volunteer to assist in the classroom or at an extra-curricular activity. Get involved early and stay involved. Even if you and your ex historically split the parental responsibilities differently, showing that you are ready to take on your new role will go a long way towards showing the Court that you are able to participate in an equal timesharing schedule.

A parent requesting equal timesharing must be sure that they are able to arrange their schedule in order to assume these responsibilities. For example, if your work schedule requires you to start prior to school or stay much later than daycare ends, what is your plan to arrange for child care until you return home? Does your job require you to travel or to be on call for emergencies? Do you have competent, reliable support in the event that you are unable to be home? When you are working as a couple, it is natural for both parents to fill these roles, but once you separate, you may not be able to routinely count on you ex to provide back-up. You will need to show the Court that you are ready to handle all of the challenges that come with equal timesharing. It is always helpful to be able to put your feelings for the other parent aside and work together for the benefit of the children.

What is the average child support payment for two (2) children in Florida?

This question will likely have to be followed by a number of other questions before generating an accurate response.  Although child support may be one of the more cut and dry areas of family law due to being governed by an actual hard and fast math calculation, the data that is placed into said calculation can often be very subjective, as it is no doubt determined on a case by case basis.  In order to know what your child support will be, you must know some things specifically before asking someone to plug in the numbers.  Relevant information to a child support calculation includes, but may not limited to, the following:

  • Gross Monthly Incomes of the parties. Do not confuse this information with your net take home pay. For purposes of calculating child support, the formula begins with your gross monthly income. This information is generally found on a party’s Financial Affidavit.  Or, if that information is not accurate, it can be found on things such as a party’s tax return, paystub, and/or W-2.  If the individual is voluntarily unemployed or underemployed, then it is possible to seek to try and impute income to that individual.  If you know someone who is voluntarily unemployed or underemployed, consult a legal professional today to learn how to go about attempting to do this before calculating your child support.
  • Overnights. The timesharing schedule needs to be clear, so the calculation can take into consideration how many overnights the child(ren) are spending with each parent.  If you haven’t already established a parenting plan within a settlement agreement or final judgment of some kind, then you can determine your number of overnights by simply counting out the number of nights your child(ren) stays at your residence overnight throughout the year.  The more overnights a parent has, the more of an effect the timesharing will have on the child support calculation.  For purposes of adjusting any award of child support a parent must exercise time-sharing at least 20 percent of the overnights of the year.”  IE – if you spend less than 73 overnights with the children per year, the child support statute treats you as though you do not see the children at all. Unfair? Yes.

Also relevant to child support are:

  • Health Care of the Parties.
  • Health Care of the Children.
  • Day Care Expenses.
  • Mandatory Union Dues.
  • Mandatory Retirement.

So, before asking “what is the average child support for…?” do your homework and gather the requisite information needed for the calculation.  Then seek out a legal professional whom you trust, as although the statute does allow for certain deviations, child support is not something that can be waived, as it is a right of the child.  Therefore, it is important to get these numbers right as they will certainly have a direct effect on the child support calculation.  If you or someone you know needs assistance with child support, don’t wait, contact Men’s Rights Law Firm for a free consultation.