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  Michael Fender 10:38 am on March 22, 2010 Permalink | Reply
  Tags: Attorney (23), child contact, Child Custody (3), Divorce (25), Lawyer (15), Orlando (28)   

  Court-Ordered Electronic Communication Between a Parent and a Child in Divorce in Orlando, Florida 

  Florida has entered the 21st century with regard to contact between a divorced parent and child. Beginning in 2007, a trial judge in a divorce proceeding how has the legislative authority to order electronic communication between a parent and child in addition to regular time sharing. The guidelines for the ordering of electronic communication are as folllows:
  In connection with proceedings of dissolution of marriage or divorce or modification of a divorce, a court may order electronic communication between a parent and a child. Before ordering electronic communication, a court must consider:

  1. Whether electronic communication is in a child’s best interests;

  2. Whether communication equipment and technology to provide electronic communication is reasonably available, accessible, and affordable;

  3. Each parent’s history of substance abuse or domestic violence; and

  4. Any other factor that the court considers material.

  Notwithstanding the above, a rebuttable presumption is created providing that it is in the best interests of a child for a parent and child to have reasonable telephone communication. Unless this presumption is rebutted, the court shall order telephone communication. The court may set safeguards or guidelines for electronic communication.

  If the court finds that one or both parents will incur additional costs in order to implement electronic communication with the child, the court shall allocate such expenses arising solely from the electronic communication between the parents after considering the respective parent’s financial circumstances.

  If the court enters an order granting electronic communication, each parent shall furnish the other parent with the access information necessary to facilitate electronic communication. Each parent shall notify the other parent of any change in the access information within 7 days after the change.

  Electronic communication may be used only to supplement a parent’s face-to-face contact with his or her minor child. Electronic communication may not be used to replace or as a substitute for face-to-face contact.

  A party to a child custody order that does not prohibit electronic communication may move a court to order electronic communication. Such a party need not prove a substantial change in circumstances.

  The court may not consider the availability of electronic communication as the sole determinative factor when considering relocation.

  The extent or amount of time that electronic communication with the child is ordered may not be used as a factor when the court calculates child support.

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  Attorney Michael Fender has been representing spouses for 17+ years when their marriages come to an end. Mr. Fender represents Husbands or Wives in the Orlando, Florida area including Maitland, Winter Park, Lake Mary, Sanford, Altamonte Springs, Apopka, Casselberry, Oviedo, Ocoee, Winter Garden, Kissimmee, Deland, and Clermont. Please feel free to contact his office to schedule an appointment to discuss your rights and options with regard to custody, time sharing, parenting plans, equitable distribution of marital assets and debts, the marital home, alimony, child support, division of pensions, 401K’s, IRA’s and other retirement accounts. If you are in need of a lawyer, please contact his office at 407-629-1886 or visit Attorney Michael Fender’s main website.

   

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  Michael Fender 9:30 am on March 12, 2010 Permalink | Reply
  Tags: Attorney (23), Divorce (25), Florida (8), Lawyer (15), Orlando (28), step parent adoption   

  Step Parent Adoptions in Orlando, Florida 

  A step parent may adopt his or her step child in Orlando and the entire state of Florida if the biological parent consents in writing to the adoption, if the consent if excused by the court or adjudged not to be necessary.

  The consent of the biological father of the step child is required under Florida law the following circumstances:

  1) The minor was conceived or born while the father was married to the mother;

  2) The minor is his child by adoption;

  3) The minor has been adjudicated by a court to be his child by the date a petition is filed for adoption and termination of parental rights; or

  4) The biological father has filed an affidavit of paternity pursuant to section 382.013(2)(c), Florida Statutes, by the date a petition is filed for termination of parental rights and adoption; or

  5) In the case of an unmarried biological father, he has acknowledged in writing, signed in the presence of a competent witness, that he is the father of the minor, has filed such acknowledgment with the Office of Vital Statistics of the Department of Health within the required timeframes, and has complied with all other requirements.

  If the biological parent’s consent is required, a court or judge may waive if the following facts are proven:

  1) A biological father or mother has deserted a child without means of identification or has abandoned a child. “Abandoned” means a situation in which the parent of a child, while being able, makes no provision for the child’s support and makes little or no effort to communicate with the child, which situation is sufficient to evince an intent to reject parental responsibilities. If, in the opinion of the court, the efforts of such parent of the child to support and communicate with the child are only marginal efforts that do not evince a settled purpose to assume all parental duties, the court may declare the child to be abandoned. In making this decision, the court may consider the conduct of a father towards the child’s mother during her pregnancy.

  2) A parent whose parental rights have been terminated by order of a court of competent jurisdiction.

  3) A parent who has been judicially declared incompetent and for whom restoration of competency is medically improbable.

  A judgment of step parent adoption, whether entered by a Florida court, another state, or of any other place, has the following effect:

  1) The judgment of stepparent adoption relieves the birth parent of the adopted person, except a birth parent who is a petitioner or who is married to a petitioner, of all parental rights and responsibilities.

  2) The judgment of stepparent adoption terminates all legal relationships between the adopted person and the adopted person’s relatives, except a birth parent who is a petitioner or who is married to a petitioner, so that the adopted person thereafter is a stranger to his or her former relatives for all purposes, including the interpretation or construction of documents, statutes, and instruments, whether executed before or after entry of the adoption judgment, that do not expressly include the adopted person by name or by some designation not based on a parent and child or blood relationship, except that rights of inheritance shall be as provided in the Florida Probate Code.

  3) Except for rights of inheritance, the judgment of stepparent adoption creates the relationship between the adopted person and the petitioner and all relatives of the petitioner that would have existed if the adopted person were a blood descendant of the petitioner born within wedlock. This relationship shall be created for all purposes, including applicability of statutes, documents, and instruments, whether executed before or after entry of the adoption judgment, that do not expressly exclude an adopted person from their operation or effect.

  4) However, if one or both parents of a child die without the relationship of parent and child having been previously terminated and a spouse of the living parent or a close relative of the child thereafter adopts the child, the child’s right of inheritance from or through the deceased parent is unaffected by the adoption and, unless the court orders otherwise, the adoption will not terminate any grandparental rights delineated under chapter 752, Florida Statutes. A close relative of a child is the child’s brother, sister, grandparent, aunt, or uncle.

  Please be aware that if a step parent adoption is entered and the step parent and biological parent subsequently separate or divorce, the step parent will have an ongoing duty to provide support for the adopted child after a separation or divorce.

  If you desire to adopt your step child and can obtain the written consent of the biological parent, or can make a strong case of abandonment, or believe that the biological father’s consent may not be necessary, please contact Attorney Michael Fender’s office to schedule an appointment to discuss your case. It is critical that a lawyer be involved when adopting a child.
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  Attorney Michael Fender has been representing spouses for 17+ years when their marriages come to an end. Mr. Fender represents Husbands or Wives in the Orlando, Florida area including Maitland, Winter Park, Lake Mary, Sanford, Altamonte Springs, Apopka, Casselberry, Oviedo, Ocoee, Winter Garden, Kissimmee, Deland, and Clermont. Please feel free to contact his office to schedule an appointment to discuss your rights and options with regard to custody, time sharing, parenting plans, equitable distribution of marital assets and debts, the marital home, alimony, child support, division of pensions, 401K’s, IRA’s and other retirement accounts. If you are in need of a lawyer, please contact attorney Michael Fender’s office at 407-629-1886 or visit Attorney Fender’s website.

   
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  Michael Fender 11:30 am on March 3, 2010 Permalink | Reply
  Tags: arrearage (2), Attorney (23), child support (5), Divorce (25), Florida (8), Lawyer (15), Orlando (28), paternity (2), retroactive   

  Retroactive Child Support in Orlando, Florida 

  Can a parent receive retroactive child support after filing a divorce case? Or a paternity or child support case? Retroactive child support is child support that is ordered to be paid prior to the entry of a child support order. Child support arrearage is unpaid child support that has been previously ordered. A court in Florida can order child support retroactive to the date of the parties’ separation with a maximum period of 24 months.

  Section 61.30, Florida Statutes provides that in an initial determination of child support, whether in a paternity action, dissolution of marriage action, or petition for support during the marriage, the court has discretion to award child support retroactive to the date when the parents did not reside together in the same household with the child, not to exceed a period of 24 months preceding the filing of the petition, regardless of whether that date precedes the filing of the petition. In determining the retroactive award in such cases, the court shall consider the following:

  (a) The court shall apply the guidelines schedule in effect at the time of the hearing subject to the obligor’s demonstration of his or her actual income during the retroactive period. Failure of the obligor to so demonstrate shall result in the court using the obligor’s income at the time of the hearing in computing child support for the retroactive period.

  (b) All actual payments made by a parent to the other parent or the child or third parties for the benefit of the child throughout the proposed retroactive period.

  (c) The court should consider an installment payment plan for the payment of retroactive child support.

  In a child support action being pursued by the Florida Department of Revenue (“DOR“), the DOR has previously filed child support cases between the same parties which have been dismissed for lack of service. In that case, a court may consider a prior filing date to be the effective date for determining retroactive child support. For example, a father has been served with a 2009 child support case and the DOR has previously filed child support cases against the same father for the same mother in 2004 and 2000, which have been dismissed for lack of service. In that case, the DOR may be able to convince a judge that the retroactive period for the 2009 case would extend back to 1998. This, of course, would result in a rather large retroactive child support amount.

  There is also a provision now in Florida law that instructs a court to assess retroactive child support in a child support modification action. If a parent receives a child support reduction in a prior child support order based upon a substantial time sharing arrangement and the parent subsequently fails to fulfill his or her obligations under the time sharing agreement order order, then a court can assess retroactive child support back to the date that the parent stopped exercising his or her substantial contact.

  The relevant statute provides that a parent’s failure to regularly exercise the court-ordered or agreed time-sharing schedule not caused by the other parent which resulted in the adjustment of the amount of child support shall be deemed a substantial change of circumstances for purposes of modifying the child support award. A modification pursuant to this paragraph shall be retroactive to the date the noncustodial parent first failed to regularly exercise the court-ordered or agreed time-sharing schedule.

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  Attorney Michael Fender has been representing spouses for 17+ years when their marriages come to an end. Mr. Fender represents Husbands or Wives in the Orlando, Florida area including Maitland, Winter Park, Lake Mary, Sanford, Altamonte Springs, Apopka, Casselberry, Oviedo, Ocoee, Winter Garden, Kissimmee, Deland, and Clermont. Please feel free to contact his office to schedule an appointment to discuss your rights and options with regard to custody, time sharing, parenting plans, equitable distribution of marital assets and debts, the marital home, alimony, child support, division of pensions, 401K’s, IRA’s and other retirement accounts. If you are in need of a lawyer for representation or advice, please contact Michael Fender’s office at 407-629-1886 or visit Attorney Fender’s website.

   
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  Michael Fender 10:55 am on March 2, 2010 Permalink | Reply
  Tags: alimony (3), arrearage (2), Attorney (23), child support (5), Divorce (25), Lawyer (15), Orlando (28)   

  Defense of Laches to Enforcement of Old Child Support or Alimony in Orlando, Florida Area 

  Occasionally a case presents itself in the Orlando, Florida area where a seemingly dormant claim arises with regard to an old child support or alimony order from a divorce that occurred many years ago. The child or children may be well past the age of majority and the payor, usually the former husband, receives a motion to enforce or for contempt in the mail or delivery by the sheriff regarding an old child support matter that he or she assumed was long over. One may think initially that the debt is so old it must be past the statute of limitations for enforcement purposes.

  However, the law is well settled that a proceeding for the enforcement of periodic alimony or child support orders is equitable in nature and is not barred by the running of the statute of limitations. The question then is whether laches, the equitable counterpart to the statute of limitations applies to bar the old child support or alimony debt. The doctrine of laches is based upon the maxim that equity aids the vigilant and not those who slumber upon their rights.

  The true test in determining whether to apply laches is whether or not the delay in enforcing the claim has resulted in injury, embarrassment, or disadvantage to any person and particularly to the person against whom relief is sought. The delay required to render the defense of laches available must have been such as practically to preclude the court from arriving at a safe conclusion as to the truth of the matters in controversy, and thus make the doing of equity either doubtful or impossible, as through loss or obscuration of evidence of the transaction in issue; or there must have occurred in the meantime a change in conditions that would render it inequitable to enforce the right asserted.

  Bottom line, it is the rare or unusual case or set of facts in which the doctrine of laches will be a defense to the enforcement of an old child support or alimony order, but Michael Fender has come across a case or two in which the doctrine of laches has been applicable over the past 18 years of practice.

  ______________________________________________________________________________________

  Attorney Michael Fender has been representing spouses for 17+ years when their marriages come to an end. Mr. Fender represents Husbands or Wives in the Orlando, Florida area including Maitland, Winter Park, Lake Mary, Sanford, Altamonte Springs, Apopka, Casselberry, Oviedo, Ocoee, Winter Garden, Kissimmee, Deland, and Clermont. Please feel free to contact his office to schedule an appointment to discuss your rights and options with regard to divorce, custody, time sharing, parenting plans, equitable distribution of marital assets and debts, the marital home, alimony, child support, division of pensions, 401K’s, IRA’s and other retirement accounts. If you are in need of a lawyer, please contact attorney Michael Fender’s office at 407-629-1886 or visit Attorney Fender’s website.

   
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  Michael Fender 11:14 am on March 1, 2010 Permalink | Reply
  Tags: Attorney (23), Divorce (25), file, Lawyer (15), Orlando (28)   

  Where Should the Divorce be Filed? 

  The issue of where to file for divorce often arises. Two determinations must be made prior to filing a divorce or dissolution of marriage lawsuit.

  The first issue is whether the court has jurisdiction. The jurisdiction of the court means its inherent power to hear and adjudicate the case. Original jurisdiction to hear and determine proceedings for dissolution of marriage or divorce is in the circuit court. The court cannot grant a valid judgment of dissolution of marriage unless one of the parties has resided in Florida for the six (6) months before the filing of the petition for dissolution of marriage or divorce. Proof of residency must be corroborated, which is usually by producing a valid Florida driver’s license or identification which was issued at least six months prior to the filing of the divorce. Proof of residency may also be corroborated by the affidavit of a third party. The party’s residence or domicile must exist at the time the divorce is filed. A later change of domicile before the final hearing does not divest the court of jurisdiction.

  A person who was a Florida resident before entering the military and has never established a permanent residence elsewhere continue to be a Florida resident for purposes of a dissolution of marriage or divorce proceeding. Owning a home, being registered to vote, and having a vehicle registered in Florida provide evidence of Florida residence for military personnel.

  Jurisdiction in a child custody dispute under the Uniform Child Custody Jurisdiction Act arises through the subject matter, the children, and does not require personal jurisdiction over the parties.

  The second issue is what county in Florida should the divorce be filed. Venue designates the particular county in Florida in which a court with jurisdiction may hear and determine the case. For purposes of dissolution of marriage or divorce actions, venue is determined by the county in which the breach occurred or by the county where the marriage last existed. The existence of property in a county unrelated to the marriage does not create alternative venue for a dissolution of marriage or divorce action in that county.

  If the husband and wife last resided together in Orlando, Orange County, Florida and the husband leaves the wife and moves to another county, the proper county to file the divorce is in Orlando, Orange County, Florida. If the husband files in a county other than Orlando, Orange County, Florida, the wife or her lawyer should move to dismiss or transfer the divorce to the proper county.

  The defense of improper venue must be raised in a motion to dismiss or by answer, or the venue privilege is deemed waived. The privilege to object to lack of venue cannot be revived after waiver.

  Election of venue initial is with the plaintiff or petitioner, who need not prove that the selection of venue is proper. The burden of pleading and proving improper venue is on the respondent.

  Venue in an action for separate maintenance unconnected with dissolution of marriage or divorce is proper in the county where the petitioner or the petitioner’s minor children are physically present and are denied support.

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  Attorney Michael Fender has been representing spouses for 17+ years when their marriages come to an end. Mr. Fender represents Husbands or Wives in the Orlando, Florida area including Maitland, Winter Park, Lake Mary, Sanford, Altamonte Springs, Apopka, Casselberry, Oviedo, Ocoee, Winter Garden, Kissimmee, Deland, and Clermont. Please feel free to contact his office to schedule an appointment to discuss your rights and options with regard to custody, time sharing, parenting plans, equitable distribution of marital assets and debts, the marital home, alimony, child support, division of pensions, 401K’s, IRA’s and other retirement accounts. If you are in need of a lawyer, please contact attorney Michael Fender at 407-629-1886 or visit Attorney Michael Fender’s main website.