WHERE DO I FILE MY PATERNITY CASE?

When clients prepare to file a petition to determine paternity, there is often confusion about the proper location within Florida (venue) to file the case. Many people mistakenly believe that the only place the petition can be filed is in the county where the mother and child live. However, according to Florida Statute 742.021(1) the proceedings must be in the circuit court where the plaintiff resides or the county where the respondent resides. This means that if one parent wishes to file a petition to establish paternity, timesharing, parental responsibility, child support, etc., the parent filing can file the case in the Florida county where they live or the county where the other parent lives.

If the parents live in different counties, the parent filing should carefully consider where to file the case. Some issues to consider, aside from personal convenience, are the age of the child and possible witnesses. For example, if the child is school-aged, it may be necessary to bring a teacher to court for testimony. If the child attends school in Orange County and the case is filed in Lee County, the teacher will be required to travel several hours in order to testify. The party asking the witness to travel may need to pay for travel expenses. The same consideration would be given to a very young child or a child with special needs that may require a doctor or caregiver to testify. It may be better to inconvenience yourself than to risk a witness being resistant or unable to travel or too expensive to bring to court because of the distance. If you are unsure about where to file your case, you should consult Men’s Rights Law Firm to discuss options and strategies prior to filing to be sure that you make the best decision. The initial telephone consultation is free.

How do child support and alimony payments get taxed in the U.S.?

Pursuant to Publication 504 from the Internal Revenue Service (IRS), child support is not considered taxable income to the parent receiving support payments on behalf of a minor child. Moreover, the receiving parent cannot consider the payments as income for purposes of trying to utilize the child tax credit. With that said, child support is also not tax deductible to the parent ordered to make the support payments for a minor child. For the parent who has the obligation of paying child support, he or she simply reports their income as they normally would on their taxes.

This concept differs greatly from alimony, as spousal support payments are tax deductible to the payor, and tax includible to the payee. More specifically, pursuant to IRS Topic 452, amounts paid to a spouse or a former spouse under a divorce or separation instrument (including a divorce decree, a separate maintenance decree, or a written separation agreement) may be income for federal tax purposes. Alimony is deductible by the payor spouse, and the recipient spouse must include it in income.

If you are a Husband/Father who is having difficulty with child support or alimony, don’t hesitate to contact Men’s Rights Law Firm to help determine your rights.

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.