Category: Florida Law Blog

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 birth mother, 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 birth mother 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 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 “blended” families. As such, many caretakers, 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.

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.

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.

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.

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 will tell you how you may best resolve your case. You need to know that an unlawful detainer is NOT an eviction. It is an action for repossession of a home under certain specific circumstances.

How Does An Unlawful Detainer Lawsuit 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 our unlawful detainer attorney 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 civil litigation lawsuit.

Defenses Against Unlawful Detainer Claims

Many unlawful detainer cases will go to trial. 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!

Do I have to pay child support if my child moves abroad

Do I Have To Pay Child Support If My Child Moves Abroad

Do I Have To Pay Child Support If My Child Moves Abroad?

Do I have to pay child support if my child moves abroad? According to the Fifth District Court of Appeals presiding over Orlando and Orange County, a parent residing in Florida may be required to pay child support for their child, even if that child is no longer living in the United States. A new decision made by the Fifth District Court of Appeals solidifies this position in the Orange County Florida family law courts. The case citation is Keogh v. Keogh, No. 5D18-1080, 2018 WL 4168553 (Fla. 5th DCA 2018).

In Keogh, the Fifth District Court of Appeals reversed the trial court’s decision. In doing so, the 5th DCA arrived at its ruling on the question, do I have to pay child support if my child moves abroad. The trial court had erroneously dismissed the mother’s request for child support during a dissolution of marriage action (divorce). Mom had moved to Ireland with the minor child and asked the court order for child support despite her relocation with the child. The trial court held that it did not have jurisdiction to order child support since the child no longer lived in Florida.

Fifth DCA Rules on Do I Have To Pay Child Support If My Child Moves Abroad?

However, the Fifth District Court of Appeals overturned the trial court’s decision. The Fifth DCA in Keogh decided that although Florida is not the minor child’s current state of residence, the Florida Court will retain its jurisdiction to award child support to the mother. The Court specifically pointed to the facts that the parties were married in Florida, and their divorce proceedings were brought in a Florida court. These two crucial facts gave Florida courts personal jurisdiction over the parents even though one parent had moved overseas.

The legal undergirding is that once the Florida court has jurisdiction over a family law litigant, the court retains jurisdiction to decide on all matters substantially related to the case. In this instance, the court held jurisdiction over the parent’s divorce and child support payments are substantially related to mom and dad’s marriage and divorce. The court answered the question we posed, do I have to pay child support if my child moves abroad.

Under Florida statute §61.13(1)(a), a court is able to “order either or both parents who owe a duty to support a child to pay support to the other parent.” This is fundamental Florida statutory law. The Fifth Circuit District Court of Appeals decided to interpret this statute exactly as it is written. The Court determined that, although the mother and child lived for several years in another country, Florida courts maintain the authority to order a parent, over whom jurisdiction has been established, to pay child support to the mother and child living abroad. The lesson here is that a child support obligation does not end simply because one parent moves to another state or country.

Do I have to pay child support if my child moves abroad? The Florida court presently has jurisdiction to order the father to pay child support, however, the 5th DCA made an important distinction that may apply to a future change of circumstances; the Keogh court ruled that “The fact that a custody proceeding may, at some point, be instituted in Ireland does not preclude a Florida court from presently exercising its authorized jurisdiction to award child support.” The Florida court may lose its jurisdiction at a future time and any existing child support order could be canceled.

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.

Jonathan Jacobs is a divorce attorney in Orlando and a family law attorney in Clermont Florida.

Relocation Factors Florida

Relocation Factors Florida

Relocation Factors Florida

The relocation factors Florida are set forth in Florida Statute 61.13001 titled “Parental relocation with a child.” The Relocation factors Florida applying to a contested relocation are announced in subsection 7. Florida Statute 61.13001(7) makes it abundantly clear that there is no presumption in favor of or against relocation.

First, I will provide relevant portions of the factors, or the factors in their entirety, and comment on each with a hypothetical, or a simple explanation of the meaning of each factor. Please note that the Florida family law court will take into account ALL of the factors, not just one factor in and of itself. No one of the relocation factors Florida is isolated as an outcome determinative factor.

Statutory Relocation Factors Florida

(a) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent or other person proposing to relocate with the child and with the nonrelocating parent, other persons, siblings, half-siblings, and other significant persons in the child’s life. This means that the Statute allows for evidence to be heard regarding BOTH parents’ involvement with the child, as well as any other familial involvement the child has in either or both locations. Why would a Florida family law court take a child away from strong family bonds and powerful parent-child relations absent a preponderance of the evidence to the contrary?

(b) The age and developmental stage of the child, the needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child. Is the child old enough to make decisions in a meaningful and rational manner? Will the relocation hinder the child’s development emotionally, or educationally? Is there a better or worse school where the relocating parent proposes to move? This is a critical relocation factor Florida where the best interests of the child are closely examined.

(c) The feasibility of preserving the relationship between the nonrelocating parent or other person and the child through substitute arrangements that take into consideration the logistics of contact, access, and time-sharing, as well as the financial circumstances of the parties; whether those factors are sufficient to foster a continuing meaningful relationship between the child and the nonrelocating parent or other person; and the likelihood of compliance with the substitute arrangements by the relocating parent or other person once he or she is out of the jurisdiction of the court. Suppose that mother has an opportunity to triple her income and send her daughter to private school. Housing is complimentary with this new job, and the quality of the private school far outweighs that of the public school where she is currently enrolled. However, by moving 2,000 miles away, daughter will rarely see dad, and dad just so happens to be her closest family member and her best friend. That makes the burden on mom to find time where dad may have visitation with daughter especially important for the court to consider when evaluating the merits of her petition for relocation based on the relocation factors Florida.

(d) The child’s preference, taking into consideration the age and maturity of the child. Is the child 6 and of a tender and impressionable age or 16 and capable of making his own decisions? If the child is not old enough or mature for his age, the court will need to make its judgment without much input from the child.

(e) Whether the relocation will enhance the general quality of life for both the parent or other person seeking the relocation and the child, including, but not limited to, financial or emotional benefits or educational opportunities. For instance, dad has decided to accept a job as a CEO of a major financial institution. If permitted to relocate with his son, his son will need to be in after school care and frequently with babysitters on nights and weekends. Dad’s income will go up, his quality of life will improve, but the child will experience the absence of consistent parenting.

(f) The reasons each parent or other person is seeking or opposing the relocation. Be truthful with the court and let your head and your heart speak on behalf of your child.

(g) The current employment and economic circumstances of each parent or other person and whether the proposed relocation is necessary to improve the economic circumstances of the parent or other person seeking relocation of the child. As mentioned above in response to one of the relocation factors Florida, if one party can double or triple their income and has limited or no employment opportunities locally, relocation may be the only way for the family to prosper.

(h) That the relocation is sought in good faith and the extent to which the objecting parent has fulfilled his or her financial obligations to the parent or other person seeking relocation, including child support, spousal support, and marital property and marital debt obligations. The objecting parent may have a weaker argument if he/she owes $10,000 in child support arrears.

(i) The career and other opportunities available to the objecting parent or other person if the relocation occurs. See answers above for clarity and examples.

(j) A history of substance abuse or domestic violence as defined in s. 741.28 or which meets the criteria of s. 39.806(1)(d) by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation. If one parent has a history of alcohol or drug addiction and particularly if the child has been exposed to such abuse, the court may want the relocating parent to bring the child to a safer environment.

(k) Any other factor affecting the best interest of the child or as set forth in s. 61.13. As stated above, the best interests of the child are paramount in a family law case.

Subsection 8 of this Statute regarding relocation factors Florida provides that “The parent or other person wishing to relocate has the burden of proving by a preponderance of the evidence that relocation is in the best interest of the child.” If the parent seeking to relocate proves his/her case for the court, the burden then switches to the other parent to provide by a preponderance that relocation is inappropriate and NOT in the BEST interests of their child.

Jonathan Jacobs is a same sex divorce attorney in Orlando and a relocation attorney Orlando.

Florida Divorce FAQ

Florida Divorce FAQ

Florida Divorce FAQ

Although we have nearly one hundred legal articles here on our Florida Family Law Blog that answer many Florida divorce FAQ, the field of family law is massive. Clients have numerous questions about how divorce works in Florida. In order to provide some measure of guidance to family law clients, we have compiled a list of five Florida divorce FAQ that we believe cover a lot of ground and answer a lot of your potential questions. Here are our five Florida divorce FAQ:

  1. Do I have to go to court to get a divorce in Florida?
  • You usually do not have to go to court to obtain a divorce in Florida, but some courts require a final hearing for 5-15 minutes for basic testimony to establish jurisdiction.
  • You may hire an attorney to handle your divorce/dissolution of marriage as an uncontested case.
  • Attorney Jacobs can prepare all of the divorce paperwork for you to save you time, money, and all of the fighting that often comes with a divorce.
  1. What is a no-fault divorce?
  • A no fault divorce in Florida means that neither party has to prove the other party is at fault.
  • The standard for divorce in Florida is that the marriage is irretrievably broken.
  • Marital infidelity does not need to be proven.
  1. What are the requirements for divorce in Florida?
  • The requirements for divorce in Florida are that one party must have lived within the jurisdictional/geographic limits of the State for at least 6 months prior to filing for divorce.
  • Furthermore, the marriage must be irretrievably broken
  • We can state in our Florida divorce FAQ that irretrievably broken in Florida is a low threshold standard that is rarely disproven or disputed.

Florida Divorce

  1. How does the court determine if I am a Florida resident?
  • Generally speaking (there is not definitive/bright line answer for every court that we can definitely state in our Florida divorce FAQ), if you are an individual that has lived in Florida for at least 6 months, but have been temporarily sent to another state for work, or have taken a vacation sabbatical for a short period of time, the court will likely decide you maintain a Florida residency for family law jurisdictional purposes.
  • Alternatively, if you have relocated your residence to another state, signed a lease to stay in Texas or North Carolina (for example), taken a job in another state, and no long have a mailing address or license in Florida, it is likely the court will deny you standing to sue in our State.
  1. How long does a divorce take in Florida?
  • The length it takes to get a divorce in Florida depends on the degree of litigation (number and extent of issues being litigated/contested) in your case.
  • The Jacobs Law Firm offers uncontested divorce legal services whereby the parties agree on all of the issues before the court before trial, and a final order can be issued effectively ending the case at that time.
  • An uncontested divorce generally requires 1-3 months of time, depending on the rapidity of the agreements reached and the availability of the judge’s time to hear the facts of your case.
  • However, if the case is contested, and disagreements remain as to custody, child support, timesharing, alimony, and how to divide marital assets and liabilities, some cases take more than a year, while at a minimum, 4-6 months of time may be required for the parties to reach a resolution.
  • You may expect that preparing a majority of your initial divorce documents may require approximately 1-3 weeks depending on the extent of your legal issues under consideration.

Jonathan Jacobs is a Lake County Florida Divorce Lawyer, and a Divorce Attorney in Orlando Florida who enjoys working with families to resolve their legal issues. Call today for a consultation to understand the divorce process beyond our Florida Divorce FAQ, and find out your rights as a litigant.