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  • Michael Fender 3:31 pm on April 22, 2010 Permalink | Reply
    Tags: , custody, , grandparent, , , relative, temporary custody   

    Temporary Custody of Minor Children by Extended Family 

    The purposes of the Florida law found at Chapter 751, Florida Statutes, providing for temporary custody of minor children by extended family are as follows:
    (1) Recognize that many minor children in Florida live with and are well cared for by members of their extended families. The parents of these children have often provided for their care by placing them temporarily with another family member who is better able to care for them. Because of the care being provided the children by their extended families, they are not dependent children.
    (2) Provide for the welfare of a minor child who is living with extended family members. At present, such family members are unable to give complete care to the child in their custody because they lack a legal document that explains and defines their relationship to the child, and they are unable effectively to consent to the care of the child by third parties.
    (3) Provide temporary custody of a minor child to a family member having physical custody of the minor child to enable the custodian to:
    (a) Consent to all necessary and reasonable medical and dental care for the child, including nonemergency surgery and psychiatric care;
    (b) Secure copies of the child’s records, held by third parties, that are necessary to the care of the child, including, but not limited to:
    1. Medical, dental, and psychiatric records;
    2. Birth certificates and other records; and
    3. Educational records;
    (c) Enroll the child in school and grant or withhold consent for a child to be tested or placed in special school programs, including exceptional education; and
    (d) Do all other things necessary for the care of the child.

    The following individuals may bring proceedings in the circuit court to determine the temporary custody of a minor child:
    (1) Any extended family member who has the signed, notarized consent of the child’s legal parents; or
    (2) Any extended family member who is caring full time for the child in the role of a substitute parent and with whom the child is presently living.

    Each petition for temporary custody of a minor child must be verified by the petitioner and must contain statements, to the best of petitioner’s knowledge and belief, showing:
    (1) The name, date of birth, and current address of the child;
    (2) The names and current addresses of the child’s parents;
    (3) The names and current addresses of the persons with whom the child has lived during the past 5 years;
    (4) The places where the child has lived during the past 5 years;
    (5) Information concerning any custody proceeding in this or any other state with respect to the child;
    (6) The residence and post office address of the petitioner;
    (7) The petitioner’s relationship to the child;
    (8) The consent of the child’s parents, or the specific acts or omissions of the parents which demonstrate that the parents have abused, abandoned, or neglected the child as defined in chapter 39;
    (9) Any temporary or permanent orders for child support, the court entering the order, and the case number;
    (10) Any temporary or permanent order for protection entered on behalf of or against either parent, the petitioner, or the child; the court entering the order; and the case number;
    (11) That it is in the best interest of the child for the petitioner to have custody of the child; and
    (12) A statement of the period of time the petitioner is requesting temporary custody, including a statement of the reasons supporting that request.

    Only an extended family member may file a petition for temporary custody. The term “extended family member” is any person who is:
    (1) A relative within the third degree by blood or marriage to the parent; or
    (2) The stepparent of a child if the stepparent is currently married to the parent of the child and is not a party in a pending dissolution, separate maintenance, domestic violence, or other civil or criminal proceeding in any court of competent jurisdiction involving one or both of the child’s parents as an adverse party.

    Order granting temporary custody.

    At the hearing on the petition for temporary custody, the court must hear the evidence concerning a minor child’s need for care by the petitioner, all other matters required to be set forth in the petition, and the objections or other testimony of the child’s parents, if present.

    Unless the minor child’s parents object, the court shall award the temporary custody of the child to the petitioner when it is in the best interest of the child to do so.

    If one of the minor child’s parents objects to the granting of temporary custody to the petitioner, the court shall grant the petition only upon a finding, by clear and convincing evidence, that the child’s parent or parents are unfit to provide the care and control of the child. In determining that a parent is unfit, the court must find that the parent has abused, abandoned, or neglected the child, as defined in chapter 39.

    The order granting temporary custody of the minor child to the petitioner may also grant visitation rights to the child’s parent or parents, if it is in the best interest of the child to do so.

    The order granting temporary custody of the minor child to the petitioner may not include an order for the support of the child unless the parent has received personal or substituted service of process, the petition requests an order for the support of the child, and there is evidence of the parent’s ability to pay the support ordered.

    The order granting temporary custody may redirect all or part of an existing child support obligation to be paid to the extended family member who is granted temporary custody of the child. If the court redirects an existing child support obligation, the order granting temporary custody must include, if possible, the determination of arrearages owed to the obligee and the person awarded temporary custody and must order payment of the arrearages. The clerk of the circuit court in which the temporary custody order is entered shall transmit a certified copy thereof to the court originally entering the child support order. The temporary custody order shall be recorded and filed in the original action in which child support was determined and become a part thereof. A copy of the temporary custody order shall be filed with the depository that serves as the official recordkeeper for support payments due under the support order. The depository shall maintain separate accounts and separate account numbers for individual obligees.

    At any time, either or both of the child’s parents may petition the court to modify or terminate the order granting temporary custody. The court shall terminate the order upon a finding that the parent is a fit parent, or by consent of the parties. The court may modify an order granting temporary custody if the parties consent or if modification is in the best interest of the child.

    ________________________________________________________________________

    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.

     

  • Michael Fender 2:04 pm on April 22, 2010 Permalink | Reply
    Tags: , , , , , , premarital,   

    Basics of Premarital or Prenuptial Agreements in Orlando, Florida 

    “Premarital agreement” means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.

    “Property” includes, but is not limited to, an interest, present or future, legal or equitable, vested or contingent, in real or personal property, tangible or intangible, including income and earnings, both active and passive.

    A premarital agreement must be in writing and signed by both parties. It is enforceable without consideration other than the marriage itself.

    Parties to a premarital agreement may contract with respect to:

    1. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
    2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
    3. The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
    4. The establishment, modification, waiver, or elimination of spousal support;
    5. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
    6. The ownership rights in and disposition of the death benefit from a life insurance policy;
    7. The choice of law governing the construction of the agreement; and
    8. Any other matter, including their personal rights and obligations, not in violation of either the public policy of this state or a law imposing a criminal penalty.

    The right of a child to support may not be adversely affected by a premarital agreement.

    A premarital agreement becomes effective upon marriage of the parties.

    After marriage, a premarital agreement may be amended, revoked, or abandoned only by a written agreement signed by the parties. The amended agreement, revocation, or abandonment is enforceable without consideration.

    A premarital agreement is not enforceable in an action proceeding in a divorce under the Florida Family Law Rules of Procedure if the party against whom enforcement is sought proves that:
    1. The party did not execute the agreement voluntarily;
    2. The agreement was the product of fraud, duress, coercion, or overreaching; or
    3. The agreement was unconscionable when it was executed and, before execution of the agreement, that party:
    a. Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
    b. Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
    c. Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

    If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution or divorce, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility.

    An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.

    If a marriage is determined to be void, an agreement that would otherwise have been a premarital agreement is enforceable only to the extent necessary to avoid an inequitable result.

    Any statute of limitations applicable to an action asserting a claim for relief under a premarital agreement is tolled during the marriage of the parties to the agreement. However, equitable defenses limiting the time for enforcement, including laches and estoppel, are available to either party.

    ________________________________________________________________________

    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.

     

  • Michael Fender 10:21 am on April 6, 2010 Permalink | Reply
    Tags: , , , , no fault,   

    No Fault Divorce in Orlando, Florida 

    In 1971, F.S. 61.041 (Fault based divorce) was repealed when the legislature enacted the Dissolution of Marriage law, which provided that fault was not an element requiring proof to entitle a spouse to a dissolution of marriage. Since there was no “fault,” the legal defenses of condonation, collusion, recrimination, and laches were abolished.

    The no-fault concept has been presumed to be in the best interest of the parties. Its objectives are to enable persons to obtain a divorce without becoming adversaries or colluding with each other to mislead the court, to encourage reconciliation by the elimination of “mudslinging” and mutual accusations, and to keep the parties “dirty linen” in the closet and out of the courtroom.

    All fifty states have made the transition to the no-fault concept of divorce, although their nomenclature may differ. The most commonly used terminology is that the marriage is “irretrievably broken.” No fault grounds may take the form of “incompatibility,” “living separate and apart”, and mutual consent. Florida’s no-fault concept has been held to be constitutional. Florida courts generally have considered the “no fault” concept to be an improvement over the fault concept to divorce proceedings with all of its attendant atrocities.

    The basis for almost all divorces in Florida is irretrievable breakdown of the marriage. The statutory test for determining if a marriage is irretrievably broken is simply whether for whatever reason or cause (no matter whose fault) the marriage relationship is for all intents and purposes ended, no longer viable, a hollow sham beyond hope of reconciliation or repair.

    It is not necessary for both parties to agree that the marriage is irretrievably broken. It evidently requires two willing spouses to remain married and only one unwilling spouse to end that relationship.

    The only other ground for divorce or dissolution of marriage is the mental incapacity of one of the parties. To use this ground, the party alleged to be incapacitated must be so adjudged pursuant to Florida law a minimum of three years before filing.

    ________________________________________________________________________

    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, plese contact Michael Fender’s office at 407-629-1886 or visit Attorney Michael Fender’s main website.

     

  • Michael Fender 9:24 am on April 2, 2010 Permalink | Reply
    Tags: , , , , ,   

    What Happens to the Marital Home when the Divorce is Final in Orlando, Florida? 

    In a divorce, there are many different possible results to resolve the issue of what happens to the marital home. First and most obvious, the home can be sold with the equity being split by the parties either equally or whatever distribution works.
    Secondly, one party can buy-out the interest of the other party. This can be done by acquiring the fair market value from three reputable realtors and taking an average or hiring a certified appraiser to obtain a value. The party who is going to remain as owner should re-finance the mortgage to remove the non-owner from any liability. Additionally, the party being bought-out should quit claim deed whatever interest he or she has in the property. The quit claim deed should then be properly recorded with the County Recorder. It is important to realize that a quit claim deed does not absolve a party from liability on the promissory note and mortgage.
    Third, the parties can agree to remain joint owners of the property until some specific date or time frame (for example, when the youngest child completes high school). Upon the happening of that date or time frame, it can be dictated as to what will happen with the property. It is possible that one party will receive one-half of the equity that was present at the time of dissolution. It is possible that one party will receive one-half of the equity at the time of sale or re-finance.
    As you can see, the possibilities are endless and are only limited by the imagination of the parties and their attorneys.
    Regardless of what is ultimately decided, make sure that your Judgment and/or Settlement Agreement is highly detailed. There should be no confusion as to who shall pay the mortgage, taxes, insurance and utilities until the property is effectively divided.
    ________________________________________________________________________

    Attorney Michael Fender has been representing spouses for past 18 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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