Important Recent Change in Florida Law About Changes in Child Custody

If you consulted a Florida attorney over the last several years about trying to obtain a change in custody of your child, you may have been discouraged and disappointed.

Because the attorney would have advised you that, among other things, to change custody, you would bear the burden of demonstrating that the existing custody arrangement was detrimental to your child. And that often that is not so easy to do.

And that advice was a bitter pill to swallow in recent years if you genuinely believed that a change in custody would benefit your child.

The Florida Supreme Court came to the same conclusion last year in an important case which took up this issue and changed the law, with far-reaching impact.

Since that case, a parent seeking a modification of custody no longer has to show that the existing custody arrangement is detrimental to his or her child.

The parent need only show that the change in custody is in the best interests of the child, the same standard that applied in the original custody determination.

(There still must also be a substantial change of circumstances, but that is more likely to be present in modification cases.)

Now, a non-custodial parent who wants to pursue a modification of custody in the best interests of his or her child need not be discouraged.

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Equal Time-Sharing: As Good As It Sounds?

Psychologist Jerome H. Poliacoff, PhD., recently wrote an article for the Family Law practitioners in Florida, in which he endorsed equal time-sharing by both parents, where they are near each other.

Dr. Poliacoff also endorsed as a default time-sharing schedule the 5/5/2/2 plan, except where the child(ren) is (are) very young.

In Dr. Poliacoff’s example, the child(ren) spend Monday and Tuesday with Mother, Wednesday and Thursday with Father, Friday through Tuesday with Mother, Wednesday through Sunday with Father and then the entire cycle repeats from the beginning.

According to Dr. Poliacoff, research supports such an arrangement as benefitting children of divorce.

With all due respect to Dr. Poliacoff and the community of psychologists in agreement with him, I think it would be detrimental to children for the legal system to subject them to such a nomadic regimen of bouncing from house to house on command.

Equal time-sharing, also known as rotating custody in Florida, has been recognized and tried, mostly by private agreement. And, in Florida, the weight of authority unequivocally disfavors rotating custody as not serving the best interests of children. Even though frequent and meaningful contact with both parents is favored.

Today, technology, such as real-time video-conferencing via the internet (as just one example) offers far less disruptive and exhausting opportunities for kids to have meaningful contact with the non-custodial parent on a daily basis, without leaving home or losing home. The next best thing to being there – and much easier on the kids.

What do you think?

Source of Article Cited: Commentator, published by the Family Law Section of the Florida Bar, Vol. XXII, No. 1, Fall 2005

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Hague Convention and International Child Abduction: Take Two – Or Double Take?

A few months ago, I posted about an appeal from a ruling deporting an American child, Arianna Adan, to return her to her father, who is living in the country where the child’s mother alleges that the father sexually abused her and the mother reportedly faces kidnapping charges if she returns there. According to a recent article, that case was reversed on appeal – but the case is not yet over and the final outcome is undecided.

Clients, understandably, often ask their lawyers “how will the judge rule in my case?” When you are tempted to ask your lawyer to “read tea leaves”, consider the trial court’s ruling under the Hague Convention in the case above. And the appellate court’s ruling under the Hague Convention in the same case.

And then consider the Hague Convention case concerning Shelby Cannon, as reported by MSNBC in Dad’s custody quest shows cracks in the system. According to the child’s father, the girl’s mother kidnapped her while in Ireland, assumed a bogus name and had her daughter impersonate a dead Irish child, all to evade court rulings in the US and Britain.

The mother’s reported justification was that “she could not afford a custody fight in the U.S.” While condemning the girl’s mother’s actions, the British court nonetheless ruled in her favor and denied the father’s application to return (“deport”) his daughter to the US.

Both girls’ cases are governed by the same international law. Care to make any predictions about future rulings in future proceedings in either case?

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Adult “Custody” or Guardianship

The Tulsa (OK) World recently published the article below entitled “Adult custody cases to increase” regarding guardianship of elders.

The issues discussed are hardly unique to Oklahoma, and the general information provided is worthwhile to Floridians as well. In addition to legal tools such as durable powers of attorney, Florida also permits residents to execute Declarations of Preneed Guardian.

Creating such instruments in advance, while legally competent, may ultimately save thousands of dollars in legal fees and costs; weeks (or months) of uncertainty and helplessness; and a good deal of time spent in court.

Just as importantly, they give the person who someday may need care and assistance (and his or her loved ones), the peace of mind of knowing that the people they have chosen to help them will have the legal instruments they will need to step in immediately when and if the need arises.

Florida parents should know that they can also create declarations of preneed guardian to care for their minor children and/or their property in the event of their deaths.

Tulsa World (Oklahoma)

January 29, 2006 Sunday
Final Home Edition

News; Tulsa; Crime; Pg. A1

973 words

Adult custody cases to increase

ZIVA BRANSTETTER World Projects Editor

As the population ages, guardianship cases involving incapacitated people are expected to become more common. The recent battle over an ailing oilman allegedly kidnapped using a chartered jet was unusual, but the question of guardianship for an elderly family member is becoming increasingly common, legal experts say.

The number of guardianship cases in Tulsa County District Courts has increased rapidly, growing 60 percent in the past decade to 714 cases last year. In the past six years, more than 4,000 guardianship cases have been filed in Tulsa County and thousands remain active, all overseen by one judge.

While much of that growth was due to grandparents seeking custody of their grandchildren, the number of cases involving incapacitated adults is expected to grow as the population ages.

“The court is almost overwhelmed,” said David Winslow, who spent nearly 27 years as a judge in Tulsa County, including 19 years as presiding judge over the probate division. Winslow is now an attorney in private practice and handles cases including guardianships.

“You take that number and multiply it by the last 10 years. The court doesn’t have the personnel or ability to review all those situations.”

As the population of America ages and life expectancy increases, family members increasingly face the question of how to help aging relatives manage their affairs. Between 1990 and 2020, the population aged 65-74 is projected to grow 74 percent, according to the U.S. Census Bureau.

Laws in every state allow for family members or others to serve as court-appointed guardians of incapacitated adults, called wards.

After a court determines an adult lacks capacity to manage his or her daily affairs, most guardians can make decisions including where the ward lives, how assets are spent and how health-care needs are met.

A recent guardianship case that drew public attention involved a family battle over oilman Charles Foster Doornbos. A Washington County judge granted Doornbos’ daughter special guardianship, which did not require advance notice to his wife. His daughters alleged his wife made several real estate and financial transfers and was gaining control of his millions.

The pair lived in Arizona and Doornbos’ daughters brought him back to Oklahoma on a chartered jet. His wife is now suing his daughters, alleging they kidnapped Doornbos.

The Oklahoma Supreme Court ruled Jan. 20 that the man was in no danger and his daughters must release him to his wife.

Winslow said people may prevent such problems in several ways.

“The adult has the capacity, if they will exercise it, to have durable powers of attorney. They can set up trusts, and they can pick people who will be their guardian, who will be taking care of them when that moment comes when the gray matter isn’t mixing right.”

A study by the General Accounting Office released last year found that guardianships can lead to abuse of the elderly if not properly supervised. The report found wide differences among what state courts require from guardians and a lack of collaboration between state and federal agencies.

Most courts surveyed by the GAO also failed to track the number of active guardianships or maintain a database on abuse, the study found.

Brenda Cowett, who heads the probate division for the Tulsa District Court Clerk’s Office, said nearly all petitions requesting guardianship in Tulsa County are approved.

A review several years ago found that hundreds of Tulsa County guardians had not filed their annual reports, Cowett said. State law requires guardians to file yearly reports stating how they are spending the ward’s assets and other actions they have taken.

Cowett said the court clerk’s computer system now notifies officials when guardians fail to file reports, and some guardians have been removed as a result. Prospective guardians also undergo a criminal background check, she said.

Tulsa County Sheriff’s Sgt. Randy Pierce learned more than he wanted to know about guardianships after he was shot in 1998 by a man later ruled mentally incompetent. Pierce sued the man and obtained a $650,000 judgment in 2002. He has been unable to collect the judgment because the man’s attorney set up a guardianship.

Pierce said he worries about the victims of people who have their assets shielded by guardianships.

“If they do have assets, they can just go stick it in a guardianship and prevent themselves from making any kind of payments,” Pierce said.

Ziva Branstetter 581-8378
ziva.branstetter@tulsaworld.com

How guardianship works Here are some highlights of Oklahoma’s guardianship law:

The guardianship law applies to minors and incapacitated persons in the state. It also applies to minors’ property in the state or to incapacitated persons living in other states.

When a petition is filed seeking guardianship of an adult, the court must determine whether the person is incapacitated due to mental illness, a developmental disability, physical illness or drug or alcohol dependency. To be found incapacitated, the person must be unable to make responsible decisions related to health and safety or be unable to manage financial resources.

Guardians can be special, general or limited. Special guardians are appointed for up to 30 days when the person’s health or financial resources are shown to be in immediate danger. General guardians make all decisions regarding the person, his property or both. Limited guardians are granted specific powers over the person or his property.

When a guardianship is granted, the order will outline what kinds of powers and responsibilities the guardian has. The guardian is required to file a plan regarding care of the ward.

Any adult who is not incapacitated may choose a guardian of person or property in advance. Section 3-102 of the state guardianship code outlines the procedure.

For educational purposes only and not intended to infringe on Copyright 2006 The Tulsa World

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