Category: Florida Law Blog

same sex divorce laws in florida

Same Sex Divorce Laws in Florida

Recently, the State of Florida decided to recognize same-sex marriage. This fascinating legal development requires same sex divorce attorneys to explore and examine same sex divorce laws in Florida. In the landmark case Brenner v. Scott, the Court held Florida’s ban on same sex marriage unconstitutional,and decided the ban on gay marriage violated both the United States Constitution’s Fourteenth Amendments’ Due Process and Equal Protection Clause(s). 999F. Supp 2d. 1278 (N.D. Fla. 2014). The United States Supreme Court has tested the legality of gay marriage on numerous occasions, and ultimately ruled that the right to marry is a central part ofthe liberty protected by the Due Process Clause. Brassner v Lade, No. 13-012058(37), 2014 WL 7399690, at *3 (Fla. Cir.Ct. Dec. 08, 2014).

Same Sex Divorce Laws in Florida and Same Sex Alimony in Florida

Additionally, in deciding on same sex divorce laws in Florida, both the Florida Courts and the Supreme Court have consistently recognized an individual’s right to have the freedom of personal choice in matters of marriage and family life. (“Under the Equal Protection Clause, persons who are similarly situated may not be classified and treated differently because the Constitution neither knows nor tolerates classes among citizens.” Brandon-Thomas v. Brandon-Thomas, 163 So. 3d 644 (Fla. 2d DCA 2015)). This landmark shift in the legality of same sex marriage brought forth additional issues such as same sex alimony and same sex child support.

As of January 6, 2015, the State of Florida recognized same-sex marriage and divorce. Homosexual couples gained the same rights and protections as heterosexual couples. However, with their victory there arose another issue; how is same sex alimony calculated? Let’s delve into Florida divorce statutes for further awareness and guidance on same sex divorce laws in Florida.

Gay Divorce Alimony

Gay divorce alimony is awarded based on the statutory factors listed in Florida Statute § 61.08, also known as Florida’s Alimony Statute. Courts look to the Statute for guidance on how alimony should be awarded when applied to a specific divorce with unique circumstances. Now that the courts recognize gay marriage and divorce, same sex divorce laws in Florida allow courts to apply the Statute in same sex divorce cases. The Statute directs courts to factor in the length of a same sex marriage when determining an award of alimony. Subsection 4 of the Statute states that a short-term marriage is less than 7 years, a moderate-term marriage is more than 7 years but less than 17 years, and a long-term marriage is over 17 years. Under the same sex divorce laws in Florida, this raises an issue of critical importance in the struggle associated with same sex alimony. What happens when a same sex couple, who has only been legally recognized as having married since 2015, petitions the court for alimony greater than a short term award?

Currently, there are no standard guidelines in same sex divorce laws in Florida that directly decide this gay divorce alimony issue. Subsection 4 of the Alimony Statute clearly defines the length of marriage as “the period of time from the date of marriage until the date of filing of an action for dissolution of marriage.” Arguments are being made that since same sex marriage was not recognized in Florida prior to 2015, any same sex couple that litigates a divorce will only be able to claim a short-term marriage for purposes of alimony regardless of the length of time the couple has been married.

One of the implications of same sex divorce only recently being recognized, is its impact on a party petitioning the court for an award of permanent alimony. Permanent alimony is based on the needs and necessity of the spouse and is based on the life they experienced during marriage. If the length of a gay marriage is decided in a case to have started only in 2015, in order for a short-term marriage to be awarded permanent alimony, the party must show exceptional circumstances as to why they should be awarded a permanent award. A court rarely finds exceptional circumstances when there is a short-term marriage.

If the divorcing parties are unable to prove those exceptional circumstances needed for permanent same sex alimony, the court may consider durational alimony. Durational alimony is awarded to provide a party with economic assistance for those in a short to moderate term marriage. The award must not,however, exceed the length of the marriage.

Your same sex divorce lawyer is likely to argue for the maximum amount of alimony if you are the party seeking alimony in your gay divorce case, or the minimum amount if you are on the defensive.

same sex divorce laws in orlando

Same Sex Divorce Laws in Florida

If you would like to learn more about same sex divorce laws in Florida please call the Jacobs Law Firm to speak with a same sex divorce attorney in the Orlando Florida area.

Motion for Minor Child to Testify in Florida

Motion for Minor Child to Testify in Florida

Motion for Minor Child to Testify in Florida

Does your paternity or divorce case involve minor children? Are you seeking to have a minor child testify in your case? If so, you may decide to file a motion for minor child to testify in Florida. This motion may be officially captioned as “Motion for Testimony and Attendance of Minor Children.” The corresponding rule within the Florida Family Law Rules of Procedure is Rule 12.407. Fla. Fam. L. R. P. 12.407 provides in part that: “No minor child shall be deposed or brought to a deposition, brought to court to appear as a witness or to attend a hearing, or subpoenaed to appear at a hearing without prior order of the court based on good cause shown unless in an emergency situation.” This Rule accounts for hearings, depositions, and other court proceedings.

According to Florida Family Law Rule 12.407, which involves a motion for minor child to testify in Florida, neither the Petitioner, nor the Respondent, may depose a minor child, cause him/her to be a witness in court, bring them to a hearing, or subpoena them unless they have first obtained a court order authorizing this to occur. This is the Rule for good reason. Florida family law courts are hesitant to allow minor children to be subjected to their parent’s legal battles. In general, children should not be forced to choose between their parents. The stresses and emotional pitfalls involved are often too overwhelming.

Florida Case Law Regarding a Motion for Minor Child to Testify in Florida

According to Florida case law, “The [Florida] law recognizes a child’s preference, if the child is of sufficient maturity, as a factor in the determination of custody.” Greene v. Kelly, 712 So. 2d 1201 (Fla. 5th DCA 1998). Simply stated, a child’s preference is taken into account when a court decides with which the child will reside a majority of the time. Careful though, read that sentence again. First, the child must be of sufficient maturity. Second, the child’s preference is but one factor, not an outcome determinative element. What determines whether a child is mature enough to appear before a judge or an attorney?

When considering whether you really want to file a motion for minor child to testify in Florida consider how old is old enough for the court (or you as a parent) to allow child testimony to influence its decision regarding custody? As general guideline, “one would NOT expect a ten-year-old to possess character traits necessary to make intelligent decision regarding primary residence.” Holmes v. Greene, 649 So. 2d 302 (Fla. 1st DCA 1995). Read carefully again. This decision does not create a blanket rule, it is merely used as guidance. How mature is the 10-year-old minor child? What is the life experience of the child? A court will consider a motion for minor child to testify in Florida even for a young child, but arguing to a judge that a 6 year old child is mature enough to know where he/she wants to live and with whom may be a difficult proposition, though not impossible.

Should Minor Children Testify in Divorce Case in Florida?

Courts are protective of minor children and their safety. This makes filing a motion for minor child to testify in Florida a decision you must make carefully. So much so, that the Florida Legislature has created Florida Statute 92.55 entitled “Judicial or other proceedings involving victim or witness under the age of 18, a person who has an intellectual disability, or a sexual offense victim or witness; special protections; use of therapy animals or facility dogs.” This primarily applies to family and divorce law cases where abuse or other indiscretions have occurred, or where children have intellectual disabilities, but it can help us understand the general position of family law judges as pertains to child testimony.

If you are involved in a child custody dispute and need to hire a family law attorney in Orlando or a divorce attorney in Orlando, call the Jacobs Law Firm to have a consultation regarding child testimony. Filing a motion for minor child to testify in Florida is a decision best made with a great deal of caution and guidance.

Elements of Intentional Infliction of Emotional Distress Florida

Elements of Intentional Infliction of Emotional Distress Florida

Elements of Intentional Infliction of Emotional Distress Florida

Often, the elements of intentional infliction of emotional distress Florida are plead as a companion to a breach of contract complaint/lawsuit. What many plaintiffs do not realize, and what many defendants do not know about this cause of action, is that it is infrequently proven. The elements of intentional infliction of emotional distress in Florida are not easy to prove because the burden of proof is extremely high. As we go through the elements of intentional infliction of emotional distress Florida, think about situations that may rise to the level of intentional infliction of emotional distress, and scenarios that likely do not cross the threshold. The level of proof required may surprise you.

To prove the elements of intentional infliction of emotional distress in Florida, a plaintiff must prove the following five elements:

(1)thewrongdoer’s conduct was intentional or reckless,that is, he intended his behavior when he knew or should have known that emotional distress would likely result;

(2) the conduct was outrageous, that is, as to go beyond all bounds of decency, and to be regarded as odious and utterly intolerable in a civilized community;

(3) the conduct caused emotional distress; and

(4) the emotional distress was severe.

Deauville Hotel Mgmt., LLC v. Ward, 219 So. 3d 949 (Fla. 3d DCA 2017). Keep in mind that if even only one element is not proven by the plaintiff, or if even one element is disproven by the defendant, it may be reversible error for the court to rule in the plaintiff’s favor. All four elements must be shown to prove that the intentional infliction of emotional distress has occurred.

Elements of Intentional Infliction of Emotional Distress in Florida

The factual predicate of the case cited above, Deauville Hotel Mgmt., LLC v. Ward, provides insight into what sort of a claim a court will entertain when a plaintiff pleads and seeks to prove the elements of intentional infliction of emotional distress in Florida. In this case, a married couple sued a hotel that hosted and catered their wedding. The couple sued the Hotel for breach of contract and intentional infliction of emotional distress. These two causes of action are often plead together. The Hotel’s alleged infliction of emotional distress resulted from management moving the couple’s wedding reception from the hotel ballroom to its lobby. One can imagine this could be painful for a couple that had planned their dream wedding, had been thwarted through no fault of their own, and had little time to resolve the situation.

Nevertheless, the Court decided that the plaintiffs’ “subjective response to the allegedly outrageous conduct does not control the question of whether the tort of intentional infliction of emotional distress occurred.” This means that the elements of intentional infliction of emotional distress in Florida must be proven based on an objective, reasonable person standard, and not analyzed exclusively based on one person’s individual and unique reaction to an event. This makes it difficult to prove one has undergone severe emotional distress.

Elements of Intentional Infliction of Emotional Distress in Florida

Intentional Infliction of Emotional Distress in Florida is Hard to Prove

Traditionally, it has been precedent in Florida that for one’s actions to rise to the level of intentional infliction of emotional distress, those actions must be shown to be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” When words such as extreme, atrocious, and intolerable are used, expect the court to require more than mere hurt feelings from a plaintiff.

Perhaps most surprising to potential clients that call our Firm is that “For one’s actions to rise to the level of intentional infliction of emotional distress, it is not enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by malice, or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.” Deliberate conduct on the part of a defendant that knows the plaintiff will be hurt is not enough to prove the elements of intentional infliction of emotional distress Florida. Imagine, criminal intent alone is not enough on its own to prove this cause of action. Instead, the defendant’s conduct must transcend all bounds of decency in civilized society.

Jonathan Jacobs is a breach of contract attorney Orlando, and a breach of contract attorney in Lake County Florida. If you would like to seek legal help to prove the elements of intentional infliction of emotional distress in Florida, or to defend against a plaintiff claiming emotional distress, call us for a consultation.

 

 

Same Sex Parents And Child Custody

Same Sex Parents and Child Custody

Same Sex Parents and Child Custody: What happens when an unmarried same sex couple uses artificial reproductive methods to conceive a child, but later separate?

Advances in reproductive technology impact the constituency of the modern family, with a major legal and social impact on same sex parents and child custody. What happens when an unmarried same-sex couple uses artificial reproductive technology to have a child, and that couple later separates without having gotten married? In particular, does the former partner, who is neither the legal nor biological parent of the child, have a legal right to continue being the child’s parent?

To answer this complex question, we have researched an important case that addresses this very issue and is a seminal place marker in the same sex parents and child custody genre/field. According to the Court in De Los Milagros Castellat v. Pereira, the answer is no, a non-biological partner does not have parental rights in this circumstance. De Los Milagros Castellat v. Pereira, 225 So. 3d 368 (Fla. 3d DCA 2017). In De Los Milagros, the two litigants, De Los Milagros and Pereira conceived a child using assisted reproductive technology (artificial insemination). Milagros and Pereira agreed that Pereira would be the birth mother and the child would have Milagros’ last name. The procedure was a success. Pereira, the birthmother, subsequently gave birth to fraternal twins in 2009, one boy and one girl. Tragically, due to a premature birth (there exists a higher risk with twins being born prematurely when in vitro fertilization occurs), the boy did not survive beyond 2 days of life, and the girl was born with special needs.

Same Sex Parents And Child Custody

The couple raised the girl together in their jointly owned home over a period of four years. This is a case where you can see the intersection of family law litigation with same sex parents and child custody. Both cared for the child, took her to medical appointments, and held themselves out as a married couple, though legally unmarried. The parties twice consulted with an adoption attorney regarding the process for the former partner to adopt the child, but no adoption occurred prior to their separation. Id. at 369. Essentially, the couple behaved as parents working in tandem to provide for the best interests of their child, but as the Courts have recently cemented, behavior and custom does not trump biology.

In 2013, the couple separated. The birthmother severed all ties between Milagros and the child. Unbeknownst to Milagros, Pereira changed the child’s last name from Milagros to Pereira. Milagros believed she had no choice but to file a court action to establish her parental rights with the child, a child she helped raise. The Court would ultimately side with the birthmother in this same sex parents and child custody dispute.

Traditionally, in ruling on same sex parents and child custody, “the common law of Florida empowered judges to award child visitation against the will of the birth, biological, or legal parent when the judge found that visitation was in the best interest of the child because a non-parent qualified as a “psychological parent.” Id. at 370. However, this tradition has recently been deemed anachronistic.

Now, regarding same sex parents and child custody, the Court has decided that a birth parent’s constitutionally protected right of privacy should prevail in the face of a challenge by a non-biological party. The Court reasoned: “Florida’s constitutional right to privacy recognizes the zone of autonomy around a nuclear family into which a judge, legislator, or official, no matter how well intentioned, simply cannot go.” Id. at 370. The Court derived from Florida’s enhanced constitutional right to privacy that it is violation of a biological parent’s right to privacy for the legislature to confer on non-parents, even biological relatives such as grandparents, the right to visit minor children against the parents’ will. Id. at 370-71.

Same Sex Parents And Child Custody

Same Sex Parents And Child Custody Case Law

The Court held that, exhibiting an intention to raise a child together does not confer legal rights of parenthood on a non-married, non-biological purported parent, “the birth mother had parental rights protected by the constitution that prevailed over the claims of a partner who was neither the biological nor legal mother.” Id. at 372. The Court denied Milagros’ petition for parental rights and established that if there is not a biological or legal relationship to the child, the Court could not force the birth mother to allow another to invade her family’s privacy.

The exact language expressed by the Court in rendering its opinion on same sex parents and child custody, is “whether the benefits of such support, from a former partner who is neither the biological or legal parent, outweigh possible detriments lies in the hands of the birth mother: The State of Florida cannot wrest that choice from her.” Id.

As the Florida courts continue to render decisions on same sex parents and child custody, we will aspire to provide insights and commentary.

Jonathan Jacobs is a same sex parents and child custody attorney in Central Florida, with offices in Winter Park and Clermont Florida.

Neyza Guzman is a third-year law student and Juris Doctor candidate at Barry University School of Law. She will sit for the Florida Bar in July 2019. Ms. Guzman excels with legal research and writing, holds a prestigious position on the board of the Child and Family Law Journal, and continues to distinguish herself in the family law field as a researcher and a scholarly writer.

 

Motion for default Florida divorce

Motion for Default Florida Divorce

Motion for Default Florida Divorce

A Motion for Default Florida Divorce is governed for Florida Family Law Rule of Procedure 12.140. Rule 12.140 clearly states that unless the court or the parties mutually agree to an enlargement of the amount of time the Respondent has to reply, “a respondent [person being served with divorce papers, and the person that did not initiate the divorce) MUST serve a response within 20 days after service of original process (there is an affidavit of service created when you are served with divorce papers for official court records).

The law (with my comments mixed in) further provides that the initial pleading served on the respondent, demands a reply not later than the date fixed in a notice by publication (if the respondent cannot be served by traditional means, publication may be made in a publication of general circulation). After 20 days have elapsed (not ending on a weekend or a legal holiday per the Florida Rules of Civil Procedure), a petitioner may file a motion for default Florida divorce.

A motion for default Florida divorce is a filing that alleges the respondent has failed to file a response (papers). An answer to a dissolution of marriage pleading confirms the facts or requests made in the petition, or contests them by denial. If a motion for default Florida divorce is granted, the Court will likely render an Order giving the petitioner everything he or she has requested (unless totally unreasonable or unlawful) in his/her petition for dissolution.

Requirements for Motion for Default Florida

Certain minimum requirements exist before the court may grant a motion for default. Namely, service of process must be lawfully made to satisfy due process concerns. An affidavit of service or an affidavit of diligent search must be provided to the court to verify every effort has been made to alert the respondent of the lawsuit filed against them. If the petitioner’s motion for default Florida divorce remains uncontested (appeals can be filed in limited circumstances to overturn an order of/for default), the court order will grant the petitioner’s petition as plead unless some portion is not legally cognizable.

Time to Respond to Counterpetition Florida Divorce

If or when a respondent files a counterpetition, the petitioner then must serve a response to a counterpetition within 20 days after service of the counterpetition. A motion for default Florida divorce can be made by the petitioner or the counterpetitioner. This part of the Rule mirrors the Rule provided above relating to an initial petition for dissolution of marriage and the time given for a respondent to answer. Per the language of the Rule, if a reply is required, the reply must be served within 20 days after service of the response. A counterpetition in a Florida divorce case alleges the respondent’s own legal allegations and requests of/from the court.

For example, if petitioner asks for majority timesharing with the kids, the counterpetitioner may ask for majority timesharing in his/her counterpetition. This is a prelude to resolving the case by expressing the parties’ positions on reaching a settlement or arguing before the court at trial.

There are certain defenses that a party may plead to temporarily toll the time required for an answer to a petition or a counterpetition. You may wish to research the Rule to help you better understand your rights and obligations.

Jonathan Jacobs is a divorce lawyer Orlando and a divorce lawyer Clermont Florida that seeks to help clients understand the Rules of the Florida family court(s). The divorce process is labyrinthine, so why not consult with a legal professional? An attorney with the Jacobs Law Firm is waiting for your call.

Florida Statute of Frauds Attorney

Florida Statute of Frauds Attorney

Florida Statute of Frauds Attorney | What is the Statute of Frauds in Florida?

As a Florida Statute of Frauds attorney, it is important to educate clients when they ask, “what is the Statute of Frauds in Florida?” Often, clients enter into verbal contracts without understanding the consequences of having done so. Other times, a person may be accused of having entered into an oral contract and they were unaware they had made any agreement at all. One way that the Florida Legislature and the Florida courts have offered some protection to the parties that enter into a verbal contract/agreement, is by enforcing the Florida Statute of Frauds. This article includes Florida Statute of Frauds case law for your reference.

Florida Statute of Frauds Case Law

Florida Statute of Frauds case law provides the essence of the Statute: “The Statute of Frauds is a legislative prerogative…that certain contracts should not be enforced unless supported by written evidence.” Hedge Capital Investments Ltd. v. Sustainable Growth Grp. Holdings, LLC, 952 F. Supp. 2d 1300, 1308 (S.D. Fla. 2013), order vacated in part, appeal dismissed in part, 593 F. App’x 937 (11th Cir. 2014). Further, “The Statute of Frauds…concerns about the reliability of oral evidence.” Gen. Dynamics Corp. v. United States, 563 U.S. 478, 488, 131 S. Ct. 1900, 1908, 179 L. Ed. 2d 957 (2011). A Florida Statute of Frauds attorney can help explain the basis of the law to clients and elaborate as to how it applies in your unique contracts case. See also LynkUs Commc’ns, Inc. v. WebMD Corp., 965 So. 2d 1161, 1165 (Fla. 2d DCA 2007).

Florida Statute of Frauds § 725.01

According to the Florida Statute of Frauds § 725.01, there are several defined instances where people must protect themselves. People should draft a detailed writing of their sales agreement. According to Florida law, there are six types of contracts that (generally speaking) must be put into a writing in order to be enforceable in a Florida court. As a Florida Statute of Frauds attorney, it is important to have these contracts committed to memory!

The contracts covered by the Florida Statute of Frauds are:

(a) the sale in an interest of land (even a partial interest such as a tenancy in common);

(b) the sale of goods totaling $500 or greater;

(c) consideration of marriage (including prenuptial/antenuptial agreements) (this is a fun subject that is often studied by law students to develop the nuances of contract law);

(d) a performance that could not be completed in less than a year;

(e) suretyship (where a third party (such as an insurer) promises to repay the debt owed by a debtor to a creditor); and

(f) an estate executer using his own personal funds to pay estate debts.

According to the Florida Statute of Frauds, a written memorialization of the contracts listed above must comply both with certain basic/foundational requirements and include the essential terms of the agreement (specificity is critical). A knowledgeable Florida Statute of Frauds attorney will be able to spot these technicalities. Specifically, the writing must identify the parties to the contract (buyer, seller, third parties, etc.), the subject matter of the contract, and the terms and conditions of the agreement. Of critical importance for the party seeking to enforce the contract in court, the writing must be signed by the person against whom enforcement is sought. This means that if I am a buyer, and the seller fails to provide the items we contracted for, it would be difficult to enforce the contract if the seller had never signed it.

“The Statute should be strictly construed to prevent the fraud it was designed to correct, and so long as it can be made to effectuate this purpose, courts should be reluctant to take cases from its protection.” Id. (LynkUs Commc’ns, Inc. v. WebMD Corp).

When a Florida Statute of Frauds attorney files a lawsuit under a contract that is covered by the Florida Statute of Frauds and the parties never reduced it to writing, the defendant will likely raise the Statute as an affirmative defense. Affirmative defenses are often waived if not pled by the defendant.

Florida Statute of Frauds

According to Florida Rules of Civil Procedure Rule 1.140 and 1.110(d), the Statute of Frauds defense MUST be raised in the answer or reply. If the defense is not made, the defense is considered to have been waived. This means that even though the contract would have been unenforceable and the defendant could have avoided liability on the contract, the lawsuit would continue and the Statute of Frauds would no longer be applicable to shield the defendant from liability on/for the contract. A Florida Statute of Frauds attorney will know when to plead affirmative defenses and how to counter them if argued.

Additional Florida Statute of Frauds Case Law

“The Statute of Frauds was enacted to prevent perjury and the enforcement of claims based on memories made faulty by the lapse of time, or loose verbal statements, and should be strictly construed.” Rowland v. Ewell, 174 So. 2d 78, 80 (Fla. Dist. Ct. App. 1965). Yates v. Ball, 1938, 132 Fla. 132, 181 So. 341. It is important for parties to an oral agreement to understand which contracts fall under the scope of the Statute in order to protect themselves appropriately. Careful and prudent buyers and sellers seek to understand the limits of their potential liability(ies). “[I]t is preferable [for the court] to leave the parties without a remedy rather than risk the ‘potential injustice’ . . . of misjudging the superior-knowledge issue based on a distorted evidentiary record.” Gen. Dynamics Corp. v. United States, 563 U.S. 478, 488–89 (2011). “Full performance of an oral agreement, however, may remove the agreement from the statute of frauds if the agreement is capable of being performed within a year and was, in fact, performed within one year.” LaRue v. Kalex Const. & Dev., Inc., 97 So. 3d 251, 254 (Fla. 3d DCA 2012).

Neyza Guzman is a third-year law student and Juris Doctor candidate at Barry University School of Law who will sit for the Florida Bar in July 2019. She excels with legal research and writing and continues to distinguish herself in the family law field as a researcher and a scholarly writer.

Jonathan Jacobs is a Florida Statute of Frauds Attorney, a divorce attorney in Orlando and a family law attorney in Clermont Florida who treats his clients with the care and compassion they need. Call us to find out about your contractual rights in Florida.

Step Parent Rights in Florida

Step Parent Rights in Florida

Step Parent Rights in Florida

Today, many individuals are part of so-called blended families. As such, many families, particularly step-parents, are unsure of their parental rights. Step parent rights in Florida are difficult to understand without a deep analysis. Let’s examine a common scenario. In our scenario, one that has in fact been litigated, one parent remarries and moves herself and her children into a residence with her new spouse. The family moves forward with all the formalities of a “nuclear” family, without realizing the step-parent’s legal rights or absence of rights. This raises the underbelly of step parent rights in Florida. What are a step parent’s rights over his/her non-biological child in our State? As always, we look to the Florida Courts for guidance.

In a recent decision, the First District Court of Appeals ruled on a crucial issue regarding step parent rights in Florida, and their decision is instructive. The Court ruled that a step-parent’s rights do not outweigh those of a non-custodial biological parent. According to the Court in Morris v. Morris, No. 1D16–4695, 2018 WL 1998887, (Fla. 1st DCA 2018), a biological parent’s interest in the custodianship of their minor child is in the best interest of the parent, and of the child.

Step Parent Rights in Florida Based on Recent Case Law

By way of background, in Morris, the mother of the minor child separated from the father and then remarried. Sadly, while the biological father of the child was residing in Germany, the mother passed away. The child was left in the exclusive care of the step-parent. This situation caused the step-parent to file a petition for ex parte emergency custody by an “extended family member.” Thus, step parent rights in Florida were litigated.

The trial court heard the step-parent’s petition, after which they granted him temporary custody. The trial court also denied the biological parent’s emergency verified motion for child pickup order, causing the biological dad to challenge the temporary custody granted to the step-parent.

On appeal, the First District Court held that while the Best Interest of the Child standard set forth by Florida statute 61.13 is usually the applicable standard in child custody cases, the trial court had mistakenly applied this standard in a case involving custody between a biological parent and a third party step-parent. The Court held that the proper standard when deciding step parent rights in Florida is the common law standard of Parental Preference. The common law standard provides that where a dispute exists between a biological parent and a third party would-be-parent, great deference should be given to the biological parent regardless of whether the third party can provide better financial and social benefits to the child.

The District Court held that a biological parent should be awarded custody of their minor child unless: (1) the biological parent was unfit; OR (2) remaining with the biological parent would result in demonstrable harm to the minor child. The Court held that consideration of the right of a natural parent “to enjoy the custody, fellowship and companionship of his offspring” is older than the common law itself. Additionally, any detriment to a child must be more than just a discomfort normally “experienced by a child when moved from a familiar environment into one engulfed by the fear and uncertainty associated with the unknown.” The Court then reversed the trial court’s Order granting temporary custody to the step-parent and remanded the lower court to reexamine the biological father’s petition for custody. Step parent rights in Florida seem to be more defined as a result of the Court’s decision.

While the First District Court of Appeals did not entirely decide whether a biological parent’s right to custody of the biological child outweighs that of a step-parent with whom the child had been living prior to the other biological parent’s passing, the Court strongly emphasizes the importance of a biological parent’s relationship with their children. The Court decided that even though the father lived out of the country, that alone was not sufficient to deny him custody of his minor child.

Neyza Guzman is a third-year law student and Juris Doctor candidate at Barry University School of Law who will sit for the Florida Bar in July 2019. She excels with legal research and writing and continues to distinguish herself in the family law field.

Jonathan Jacobs is a divorce attorney in Orlando and a family law attorney in Clermont Florida who treats his clients with the care and compassion they need. Call us to find out about your step parent rights in Florida.

Application For Determination Of Civil Indigent Status

Application For Determination Of Civil Indigent Status Florida

APPLICATION FOR DETERMINATION OF CIVIL INDIGENT STATUS FLORIDA

Under what circumstances might you qualify for civil indigent status Florida? Your first step should be a review of your finances. If you believe your income is low and you cannot afford to file for divorce or paternity without a waiver of the fee, you may wish to file an Application For Determination Of Civil Indigent Status. This application for indigent status asks a number of questions about your assets (stocks and bonds, overall portfolio), current job(s), social security and/or disability income and benefits, retirement and pension plans, etc. The Application For Determination Of Civil Indigent Status will also ask about your liabilities.

For example, you may currently have a stable job that pays a reasonable salary, but you might be in severe debt, unable to afford any expenditure for a lawsuit. These debts may include child support (ongoing and/or arrearages), credit card debt, medical bills, the cost of your medications/prescriptions, etc. The questions to determine if you qualify for indigency status in Florida also include whether you own a home, whether it has Homestead protection, and if you have any recurring sources of income.

Civil Indigent Status Florida

The Application For Determination Of Civil Indigent Status is about judicial fairness. If it is determined you can afford to pay for a lawsuit, you may request a hearing to contest it, but if you truly have the funds, and your application is denied, you may wish to file suit and pay the court filing fee. If you are destitute (poverty-stricken), it is probable the court will see that based on your truthful answers to the questions in your civil indigent status Florida application.

Whether you have an attorney does not necessarily impact your Application For Determination Of Civil Indigent Status Florida. Many attorneys take cases on a pro bono basis on behalf of impoverished clients that otherwise would have no legal help in times of great crisis. If you have questions about your civil indigent status Florida you may call your local clerks of court, or if this is a family law case in Central Florida, please feel free to call us, the Jacobs Law Firm located in Clermont and Orlando Florida.

Jonathan Jacobs is a divorce attorney in Clermont Florida and a divorce attorney in Orlando Florida that takes the time to speak with clients to help them make the best decisions possible for their family law cases.

How Hard Is It To Get A Divorce In Florida

How Hard Is It To Get A Divorce In Florida

How Hard Is It To Get A Divorce In Florida?

The proverbial million dollar question is: how hard is it to get a divorce in Florida? Getting a divorce in Florida is relatively straight-forward IF both parties are in agreement. Uncontested divorces (divorces where both parties agree on all issues) can take as little as a few weeks if your attorney is able to draft the pleadings and have the proper documents notarized. However, if the parties are in disagreement about issues such as child support, timesharing and custody, the splitting of assets and liabilities, who gets what car or house, etc., getting a divorce in Florida can be complicated.

How Hard Is It To Get A Divorce In Florida Compared To Other States?

How hard is it to get a divorce in Florida when Florida is a no fault divorce state? A no fault divorce in the State of Florida means that the standard for marital dissolution is lower. All that needs to be plead is that the parties’ marriage is irretrievably broken. Usually, this is a vague phrase that can mean any number of things. The Judge will likely not ask you probing questions such as why or how your marriage has been irretrievably broken. The judge may do this if your case goes to trial and the misbehavior of the spouses is at issue. Therefore, in Florida, getting a divorce can be easier than it is in other states where evidence of infidelity or other marital indiscretions may need to be alleged and or proven.

How Hard Is It To Get A Divorce In Florida If My Spouse Does Not Want A Divorce?

How hard is it to get a divorce in Florida if your spouse does not want to get a divorce? Under Florida law, a spouse that does not want to be divorced may ask the judge for a three-month continuance so the parties can go for marital counseling. However, the judge does not have to order counseling. If the other spouse protests that the marriage is irretrievably broken and that counseling would be both unsuccessful and cost the parties a great deal of money, the judge might decide to allow the divorce process to move forward without mutual consent.

Ultimately, regardless of whether one party wants a divorce, the court will ultimately grant a divorce. However, while the process unfolds, a number of complications may develop. There could be accusations of domestic violence, the Department of Children and Family services may become involved, and the attorney representing the party seeking to stall the divorce may file motions designed to stay the proceedings and prevent trial.

Jonathan Jacobs is an experienced and compassionate divorce lawyer in Orlando Florida, Winter Park, and a Clermont divorce lawyer who loves to work with clients that want the best for their families. Call today for a consultation.

Unlawful Detainer Attorney Lake County Florida

Unlawful Detainer Attorney Lake County Florida

Unlawful Detainer Attorney Lake County Florida

Jonathan Jacobs is an Unlawful Detainer Attorney Lake County Florida helping clients get possession of their homes back in Clermont, Minneola, Tavares, Leesburg, Mount Dora, Howie-in-the Hills, the Villages, and in all of Lake County Florida. An unlawful detainer case has certain minimum legal requirements. First, the defendant must not have a contract (lease) with you to stay at the residence (house, apartment, condo, etc.). Second, the defendant should not be able to show the court they are paying you rent. Third, you should first revoke the defendant’s right to occupy your home before filing a lawsuit. An Unlawful Detainer Attorney Lake County Florida will tell you how to resolve your case. An unlawful detainer is NOT an eviction. It is an action for repossession of a home.

Unlawful Detainer Attorney Lake County Florida How Does it Work?

An Unlawful Detainer Attorney Lake County Florida will first ask about your situation. Your facts must demonstrate that filing an unlawful detainer action is right for you. If your facts are not right for an unlawful detainer case, perhaps an action for eviction or ejectment will be more appropriate.

Once an unlawful detainer attorney from the Jacobs Law Firm confirms that your case is right for litigation, we will draft your legal paperwork. Because we have experience with unlawful detainer cases, we know what to file, where to file it, and can let you know upfront all of the expenses associated with this type of a case. Evictions are straight forward. Unlawful detainer cases are a different type of lawsuit.

Defenses Against Unlawful Detainer Claims

As an Unlawful Detainer Attorney Lake County Florida, it is true that not every plaintiff in an unlawful detainer case will win. The defendant may have valid defenses. For instance, they may have evidence of a lease contract. Or perhaps, they have paid you to live in your residence and have evidence of payment. Think carefully about the facts that the court will hear when your case goes before the judge.

Jonathan Jacobs of the Jacobs Law Firm is an Unlawful Detainer Attorney Lake County Florida that can help you with your case quickly and efficiently when you need our attorney services. Call today!