Family Legal Questions

Thank you for your question.  To the extent that the pre-marital disability policy payments to your spouse made today represent a substitute for future lost wages and future medical bills, the benefits are the separate property of your spouse. Payments for “pain and suffering, lost wages, and disfigurement” are the separate property as well.  If you consult with an attorney, please have him or her look up the 1989 Florida supreme court case of Weisfeld v. Weisfeld and check to update for any new cases since then in your District.... Read More

Thank you for your question. The answer to your inquiry, of course, depends on three assumptions: First, that the child is still a minor. Second, that the child continues to live with your wife. Third, that our wife and her child have lived in Florida for six months. I would recommend your wife consult with a family law attorney in Florida to have a petition filed in the Florida circuit court to register and domesticate the New Mexico judgment. This will ‘make’ the judgement a Florida judgment, thus giving the Florida court jurisdiction going forward over any issues involving her child. She will need to serve her ex-husband in Oregon so she should have his address.  Good luck!... Read More

Thank you for your question. I am not sure what you are asking but I will attempt to assist you. It is not clear if you are the father, grandparents or the mother of the children, but as you used the word “us”, I am assuming you are a grandparent of the children. It seems likely D.C.F. is asking the court for a case management conference and all parties must attend, including the father. If there is a date and time set for the conference, please ensure that everyone attends including the father. If the father did not receive notification of the conference, he needs to be sure the court clerk has his current address so that notices can be mailed to him. Good luck!... Read More

Getting a court date depends on the judge's judicial assistant or case manager setting hearings for that judge. There is no uniform standard between the Circuits in Florida or indeed between the judges in each Circuit.  In Broward and Miami-Dade Counties for example, the courts use a system called CourtMAP to set hearings. However, if you are self-represented, please call the judge's judicial assistant to ask about setting your hearing.  The current pandemic also has courts setting hearings usiing Zoom.  Good luck! ... Read More

Thank you for your question. You did not specify why you were held in contempt of court, so I will address the balance of your question. If you had a hearing before a general magistrate and do not believe the Report and Recommendations from the magistrate followed the laws or ignored the facts that you have given me in your question, you have a very important avenue still open to you. Under our Rules of Procedure in Florida, you have ten (10) days to file what are known as ‘Exceptions’ to the general magistrate’s Report and Recommendations to the court. That will give you an opportunity to ‘appeal’ the magistrate’s determinations to the judge that appointed the general magistrate to hear your case. Again, this must be done within ten days of the Report and Recommendations begin filed with the Clerk of Court. You will need to order a transcript of the hearing which you can get from the magistrate’s office or by ordering a copy of the transcript if you used a court reporter. Do not delay, The ten day rule is firm.  Good luck.... Read More

Thank you for your question. The advice you received thus far, as you relate it, is not correct. You said he is obligated to pay child support, likely through the Child Support Enforcement/Florida Department of Revenue process. If so, then he has been found by the administrative judge to be the father as a matter of law. You will see this in the Final Administrative Child Support Order. Since he is the “legal” father of the children, you cannot relocate out of the state unless you have the father’s written authorization or you have received a Circuit Court order to leave through filing a relocation case (Chapter 61.13001, F.S.). Failure to obtain either the written consent or the court order PRIOR to relocating can subject you to an order to be obtained by the father to have you return the children to Florida. You should consult with a more knowledgeable family attorney to assist you with the relocation case. Certainly, the domestic violence, child support arrears and drug use by the father will weigh in your favor as will the fact that you will be stabilizing the children’s lives by (presumably) marrying your fiancé. The reason for your move to South Carolina, the new timesharing schedule you will be creating for the period after you move, and the details of your prospective lives in South Carolina should all be part of your discussion with the lawyer.  Good luck!... Read More

You would have to contact the caseworker to request a vountary termination of rights.  They prepare the paperwork for that, if they approve it.  They ordinarily approve it so long as there are responsible parties remaining, in this case the person(s) who made the complaints and has the children currently. ... Read More

Your procedural situation is unclear.  If there i still an open abuse and neglect case, CPS is presumably looking to substantiate the abuse for prosecution, but after a year that seems odd.  if the pediatrician indicates that neurological examination might be of use to the child's future development, it seems prudent to make an appointment no matter why it is being requessted.  You probably should take all of your paperwork and consult with a family law specialist well versed in abuse and neglect cases to determine your options, and any risks to you or to the child.... Read More

I have been a divorce lawyer for the past 34 years and am pretty tough ( on the outside) but this type of inquiry still causes me sadness since im sure that you sincerely are angry, hurt, frustrated at your current setting and im also sure that your mom does not know how her actions impact you or does not know how best to communicate with you. Im also sure that between your view of the world and your mom's view of the world, there is a lot of struggling taking place and possibly your mom may not have the financial resources to give you the life and the home setting you would like to have. Simply states, life sometimes "sucks" and it may be the reason why you and she are banging heads. Over the course of years, my wife & I have also taken in kids from our local community who were friendly with our sons because of conflicts in their households. In one setting, we took guardianship of a a boy, whose parents had mental health issues and nightly, he slept with his cell phone under his pillow hoping for a call from his mom. Nothing was more heart wrenching to watch then to see the sadness in that boys heart waiting to see if his parents would get the treatment needed for him to go home. My suggestion for you is to google mental health assistance programs offered through your county or through DCPP and maybe you can begin counseling to help you better communicate with your mom and maybe she can then attend the counseling with you so that she can better understand how to constructively communicate with you. Dont give up on your mom.... it may be that she is suffering as well for a million other reasons and does not know how to discuss her issues with you too. ... Read More

Whether you can enlist in the military (and relocate your child) without permission of the court depends on what your current order says.   If the order contains a geographic restriction, you can relocate your child outside of the geographic area if the the father agrees in writing or the court signs a new order.  If the order does not contain a geographic restriction, you can relocate your child without going back to court for a modification.  Depending on the specific facts of your case, it seems likely a court would allow you to enlist and relocate with your child.  This would be a fact specific inquiry by the judge and you may need an attorney representing you to present your case to a successful result.  If you do hire one, you should look for one with significant military experience to help you present the military issues.... Read More

You have two options. The simplest option is to file for eviction and have him removed from the property. He doesn't pay rent and has a drug issue, so take your pick on causes for eviction.   Your other option could be to file for a temporary restraining order that would make him vacate based on the threat to you or the children. There is no reason you can't do both of these at the same time.... Read More

Right off the bat, my sense is that you are misunderstanding the actual terms of your divorce agreement or someone explained the terms to you incorrectly. Believe it or not, in New Jersey family law, there is no such legal term as "joint custody". 85% of all divorce agreements in New Jersey say that the parties shall maintain a "joint legal custody" arrangement for the benefit of their child[ren], which term actually has nothing to do with the parenting time plan in place for you with your child. "Joint legal custody" means that when there is a major decision affecting your child's health, education or general welfare, you and the primary custodial parent must discuss it.  When you have a joint legal custodial plan, it also means that one parent is the parent of primary residence and has the child[ren] living with him / her more than 50% of the overnight time. The other parent is identified as the “parent of alternate residence”, which means that the child[ren] live with him / her less than 50% of the time.  Alternatively, some people have a "joint physical custodial plan", where the child[ren] live with both parents approximately equal amount of overnight time and in this limited setting, neither parent is designated as the parent of primary custody and the agreement would specifically spell out a shared equal custodial plan where the child[ren] live in each parents home approximately equal amounts of time during the year.  So, presumably you have a joint legal custodial plan and in that setting, the agreement should spell out your entitlement to a specific parenting time plan. If things have changed since the agreement was put in place, that can constitute a "change in circumstance" and give you the ability to renegotiate your parenting time with the child[ren] or file an application with the court seeking to modify the plan. If you are planning to seek modification of the existing plan because of a change in circumstance setting, my suggestion is to do it right and hire an experienced family law attorney to file it. If you screw it up, filing it on your own or through a lawyer who is not a family law specialist, you will not then be able to simply refile that application with a different lawyer. You have 1 shot to do it correctly, so hire the specialist to work with you on that application.     ... Read More

Thank you for your question. You have raised about five issues seeking to set aside what I assume to be (though not mentioned) is the Final Judgment of Dissolution of Marriage and likely related relief such as alimony, equitable distribution, children’s issues, etc.. Most of them are addressed directly under Florida Family Law Rules of Procedure 12.540 (b) (1) - (5). There is a one year time limit under the Rule for each of these sub-parts (b) (1) - (3) but for fraudulent Financial Affidavits so read the Rule carefully. Not receiving the Notice of the Final Hearing at your mailing or e-mail address which you provided to the Clerk of Court may also be a ground for vacating the Final Judgment as well.  The fact that one party had counsel and the other did not have counsel in and of itself is not a ground for vacating a Final Judgment. Being threatened to not to appear in court may be a ground to set it aside under Rule 12.540 (b)(3). See Hitt v. Hitt 535 So.2d 631 (4th DCA 1989). Again, be mindful of the one-year limitation and that this does NOT apply to fraudulent Financial Affidavits under Rule 12.540 (b)(5).  I have tried these cases over the past thirty years in South Florida, and if you are not represented by an experienced family law attorney you absolutely will need one to proceed in this instance. This is a sophisticated area of law and not the place for the unrepresented. ... Read More

Yes, once you and your fiancé are married, an intrafamily adoption may be conducted wherein a stepparent may adopt the child of his spouse so long as certain criteria are met. You are correct that your ex has not established paternity. As I assume you and your ex were not married on or around the time your daughter was born, where paternity would have been presumed, in Louisiana at the time your daughter was born your ex would have had to either 1) signed the birth certificate or 2) sign an act of acknowledgement of paternity to establish his parental rights. Now that said, in my experience, as you know he is the biological father of your daughter, he will very likely be considered a necessary party that the Court will require to be served with the adoption paperwork and given a chance to contest the adoption, though he will have little power under the law to do so. Under Louisiana law, parental rights may be terminated if a father is unable to demonstrate a substantial commitment to parental responsibilities. Specifically, under Louisiana Civil Code Article 1245, if your ex has refused or failed to visit, communicate, or attempt to communicate with your daughter without just cause for a period of at least six months, his consent is not necessary for the adoption to go through. A case of particular note with facts very similar to your own is In re C.E.B., 161 So. 3d 811 (La. App. 3d Cir. 2014). In that case, an intrafamily adoption was allowed to proceed as the biological father, who had not established his paternity rights, was unable to demonstrate a substantial commitment to parental responsibilities. Based upon your description of the situation, it appears that serving your ex with the intrafamily adoption petition may be an issue and, even if you were able to locate him, he may dodge service. Louisiana civil procedure allows for matters such as this to proceed but may require an attorney (called a “curator”) to be appointed to attempt to locate and serve him and, if unable to, to represent your ex’s best interests in his stead at the adoption proceedings. During the adoption process, the Department of Children and Family Services will conduct a background check and your new husband will need to be fingerprinted. If you would also like to have your daughter’s last name to be changed during the adoption process, it may also be completed during this process. Intrafamily adoptions can be complicated and drawn-out process if the necessary steps are not met. If you are interested in having someone assist you, please feel free to give my office a call at (337)237-0492 to set up a free consultation. I’ve represented clients in numerous intrafamily adoptions and would be more than happy to assist you.... Read More

Thank you for your question. Not sure why Legal Aid could not help you. If you are in a large county (like Miami-Dade, Orange, Duval, Hillsboro, Broward, etc.) you can have the local bar association give you a pro bono attorney to assist.  In the interim, you should see a family law specialist to advise you on obtaining a divorce at this time. If you wish to go forward with a divorce, you can have the divorce court transfer the domestic violence case to the divorce case, have the court award you temporary attorney's fees and handle everything at one time in one court. In your divorce case, you can request an injunction for yourself based on the violence at the hands of your husband. (Save those pictures!) Please do not delay. Domestic violence final hearings are typically set very soon after the injunction case begins, even as little as within fifteen days. Good luck!... Read More

Good evening. The COVID-19 crisis is definitely not, let me repeat not, grounds to refuse summer parenting time. That is not me as a person criticizing your parenting, that is a lawyer answering your question. The judges in the state of Tennessee will absolutely consider a refusal to allow parenting time to be willful contempt of court.  The same order that apparently gives you primary custody gives him the summer visitation. If you have custody, then that is because you have a valid court order. That means it's valid both ways. Having primary custody does not mean you can modify parenting plan without court approval. I feel pretty sure that's not what you were hoping to see, and I'm sorry to give bad news, but I'm absolutely positive I'm correct. You do not want to deny this parenting time. Best of wishes to you and your family; I certainly hope everyone stays safe and healthy.... Read More

Having practiced divorce & family law in New Jersey (exclusively) for the past 34 years affords me the luxury of being blunt and direct with you in response to your inquiry. Based on the limited information provided, it sounds as if the issue is simply your unhappiness with him wanting to take the children away on a vacation as opposed to any legitimate health issue. Being brutally honest, it sounds as if you are concerned that the children are going to have fun and want to spend more time with him "and his new family" and you are afraid.  It’s understandable but your role as the primary custodial parent is to help the children have a healthy and happy childhood and the more actively their father is in their lives and the more willing he is to be involved, presumably it will be to their benefit. You may need to bite your lip thinking of the million times that you had to remind him of events in the children’s lives or even beg him to attend but your glory is seeing your children blossom into healthy adults with healthy relationships. Never an easy task. I am sure that you will miss them and hope that they have a great time and the best thing for you to do, is to tell them to have fun, behave, be respectful and that when they get back, they can tell you all about their trip. The worst thing you can do is cry when they are leaving, call them while away looking for them to spill dirt on their father and engage in actions to make it clear that you did not want them to go away. If so, when they get back, they will be panicked thinking that you are going to grill them on everything bad about the trip or grill them seeking info to use against their father. Don’t. Tell them that you love them and that you want them to have fun. As far as the arrears, they also are not relevant from a courts perspective as to whether he is entitled to parenting time or vacation time with the children. They are 2 separate issues and the failure to be current in his support obligation will not preclude him from being with the children. If anything, making it easier for him to see and be with the children will probably help in getting him to assist in paying for other expenses for the children over time. My experience is that the tighter you control those reins on when he can see or be with the children, the more likely he will be resistant to help out with the payment of extra curriculars, etc. Your ex may be a guy who is cheap and will not give you an extra penny for the children no matter what you do to accommodate him but remember that the real reason for your actions is to help your children have as normal a relationship with both parents as possible, even if he is a jerk. ... Read More

Thank you for your question.  It is possible that a notarized letter showing that you consent to the enrollment may be enough, but it may depend on the school district’s own policies.  Have you discussed whether this is a permanent change you are looking to make as far as the custody goes?  A change in custody can be difficult to change once it is finalized, so you want to be sure you have considered all of the potential ramifications.  I recommend meeting with a family law attorney to discuss your options.  ... Read More

SSI payments are made to low-income individuals who meet the Federal guidelines for these benefits. Unlike earned wages, SSI payments are generally not subject to garnishment for child support or alimony. I would strongly urge you to contact a family law attorney or specialist in Social Security law to see if your particular situaton may (your anticipated retirement benefits from employment) create a scenario where garnishment of your non-SSI payments may be possible.   Good luck!... Read More

Hell, Ms. Matthews: I am a bit surprised there have been no answers to yur question. Simply stated, you will need a Florida attorney. Ther eare some fine counsel in Brevard County, Florida (Cocoa Beach/Cape Kennedy region) and you should contct one or more of them as soon as possible.    Good luck!... Read More

In order to contest a PPO, the Respondent must file a Motion to Set Aside or Dismiss the PPO.  The Court will schedule a hearing.  Normally, the parties are required to attend the hearing.  Becasue of the COVID-19 Restrictions, the Court may permit a hearing be held by telephone or Zoom. ... Read More