Family Law Outline (Arcaro)

1. Families Generally
♦ Only the traditional family and those relationships that come close to it are protected.
♦ The traditional family is the nuclear family (wife, kids, etc.). This also includes the extended family.
♦ The court has also protected functional families that ban together to combat adversity, food stamp privileges
cannot be denied.
♦ However, the court does not protect unrelated people that are merely attempting to benefit from the cost savings
of living together
♦ The court has also declined to protect cohabitating couples, and gay sodomy, (Bowers), as these do not
constitute traditional families either.

2. Alternative Families
o FL does NOT RECOGNIZE COMMON LAW MARRIAGES, therefore you have no remedy if you
cohabitate in a relationship. If you live in a common law marriage before January 1 st, 1968 then it
is ok.

o Fl. will recognize foreign state if jurisdictional requirements are met

o What is cohabitation: Cohabitation is a non-marital relationship that has no legal status and no
equitable remedies when it is over.

o In other words, you may be able to enforce a contract created by cohabitants if the Contract is legal but
you cannot enforce it for something like sex for money.

♦ The act provides that if both parties live together in an open state of adultery they shall both be guilty of a
misdemeanor of the second degree. (penalty is up to 60 days in jail and $500 fine). This is in 798.01 and
798.02. It is also a crime to be the unmarried person in the adulterous relationship.

o The act further states that cohabitation is unlawful if the parties are living together in an open
state of adultery and they engage in lewd and lascivious behavior.

o With the act of Bigamy only the married person will be prosecuted

o However, realistically, the police do not regularly prosecute for this.

o In other states (NOT FLORIDA, courts have recognized cohabitants relationship as contractual and have
even said that there is a cause of action for breach of a express or implied contract between unmarried
couple and that non-marital couple has the right to enter into contract, BUT THESE AGREEMENTS ARE
NOT RECOGNIZED IN FLORIDA.

o In sum, Fla. Statute takes a traditionally punitive approach to sex outside of marriage.

o Durational residency for common law marriages that are recognized is 6 months.

3. Privacy:
♦ Privacy is the right to be let alone.
♦ Case law says that this right to privacy means spatial (bedroom) privacy (right to seclusion) and decisional
autonomy (right to bear and beget children. The following cases discusses privacy:
! Griswold (Spatial privacy) - Contraceptives and the sanctity of marital
relations (bedroom). Held contraceptive was part of privacy b/c of right
to nondisclosure.
! Eisenstaedt (decision-making) - said unmarred have right to
contraceptives too under EP clause.
! Meyer & Pierce – ( right of parents to control the upbringing of their

1
 children)
! Skinner - Right to procreate or not procreate (struck down sterilization)
! Lawrence- overruled Bowers. Gay Sodomy is a privacy issue of
consenting adults.
! Cruzan - right to die to the extent of refusing medical treatment.

4. Abortion:
♦ What kind of right is the right to get an abortion: It is a privacy right. The right to have an abortion is the right
to make decisions about your body.
♦ Is a woman’s right to abortion a fundamental right?
♦ Yes, this is a fundamental right but court treats this right differently form other fundamental rights.
♦ States can regulate a woman’s right to abortion before viability, but the State cannot pose an undue burden or
place substantial obstacles on abortion before viability occurs.

♦ An example of undue burden is spousal consent or notification requirements. These are unconstitutional.
♦ In other words, coercive restrictions –restrictions that give someone other than the woman and her physician a
choice are unconstitutional.
♦ BUT, non-coercive restriction- if the ultimate decision is up to the woman, then it is constitutional. But if the
decision is beyond the woman then it is unconstitutional.

♦ In sum, the state can place restrictions on a woman’s right to abortion, but the restrictions must not be coercive.
They can make the women wait 24 hours for her to change her mind.

♦ NOTE the government does NOT have to provide financial assistance to indigent woman for an
abortion.

Abortion and Minors

♦ Fla. requires notification for minors to have abortion, NOT CONSENT. Notice means that it is given directly to a
parent or legal guardian of a minor at least 48 hours before inducement.
♦ In short a MINOR can get an abortion in Fla. w/o consent of a parent, only Notice is required.
♦ If the minor does not want to give notice then there is a procedure called judicial bypass.
♦ In other words Minors are required to give parental notice or obtain judicial waiver of notice (judicial
bypass) for abortions.

♦ Judicial Bypass is a procedure where the child petitions the court to waive the notice requirements
o The Petition must state that the minor is pregnant and that notice has not been waived.
o Minor has the right to a court –appointed counsel at no cost to her.
o The court must rule on this petition within 48 hours after the petition has been filed.

♦ No notice is required if:-

1. there is a medical emergency
2. parental /guardian waiver of notice in writing
3. the minor is married and has had the disability of non-age removed
4. the minor has another dependent child already
5. a judicial waiver has been granted

The two standards for Judicial bypass:

1) Best interest of the teen to not notify the parents
2) maturity of the teen

♦ Who is required to give Notice?-

o The doctor is required to give notice to the parent/guardian 48 hours before procedure.
o Notice must be actual, but if not possible then constructive notice

2
 ♦ In granting a judicial waiver or judicial bypass the court must find clear and convincing evidence that the
child is sufficiently mature enough to decide to terminate the pregnancy. The preponderance of
evidence standard deals with best interest.

♦ If the court finds by a preponderance of evidence that there is child abuse and that notice to the parents is not in
the best interest of the child, then court can also issue order authorizing the abortion.

♦ Can minors/teenage girls get medical treatment for pregnancy w/o parental consent? Yes an unwed
pregnant minor has the right to consent to medical services for herself or her child. SEE 743.065

Life and Death

The state must show that the person wants to be taken off of life support. With substituted judgment there needs to be
clear and convincing evidence that this is what the person wanted them to do.

If it involved a minor the parents would have the right to make the decision for their child.

Marriage Topics
- breach of promise to marry
-Gifts in contemplation
-
-
- substantive regulations of marriage
- capacity, incest, bigamy, age restrictions, fraud and duress
- procedural regs
- licensure, solemnization, bloodtests, and informal marriage

5. Getting married
Is marriage a K?
- It’s a quasi-K that cannot be changed.

(i) Actions for Alienation of Affections,

Criminal Conversation, breach of contract to marry
♦ All of these actions are abolished in Fla. It is a misdemeanor to even bring these actions
♦ Breach of contract of promise to marry is no longer a viable cause of action, but some states still allow this claim
for breach of contract and intentional infliction of emotional distress.
o Should a party have a cause of action for BPM?
 No b/c it would be unfair to force a person to marry that does not want to get married.
♦ In Fla., you cannot file or even threaten to file such an action for BPM.
♦ The tort of seduction is promising to get married in order to have sex.
♦ The Heartbalm statute is a state law which abolishes the rights to seduction, breach of contract of promise to
marry.
o They have been since abrogated.
♦ 2. Gifts in contemplation of marriage, on the other hand, are still recoverable.
♦ In Fla. a suit to recover an engagement ring is enforceable. Actions for alienation of affection, criminal
conversation, seduction or breach of contract to marry are barred (heartbalm statute), BUT it does not
affect the rights of parties relative to gifts passing between them. Thus in Florida the person giving the
ring has an enforceable legal right to recover the ring.
o If the gift is tied to the contemplation of marriage then its recoverable.
 Gift absolute - But if its simply a gift without any condition (ie: a bday gift or a Christmas
gift) its not
o Exam question: Guy tells girl lets get married, but girl says I want you to put a new shower in my
house instead.
 This counts as a gift in contemplation of marriage.
o What if the fiancé that bought the gift dies b/f marriage? N.4
 The estate gets the gift back b/c the condition of the gift was not met.
♦ Most states follow a fault based scheme. Who ever breaks it off has to let the other keep the engagement ring.

3
 And, if both are at fault, the man gets it back.
♦ The modern trend, however, is to always giving it back to the man. This is the No fault jurisdiction which is
Florida
o Majority – fault based jurisdictions – who is at fault in making the condition not met.
o Minority – FL – no fault goes back to whoever brought it

♦ Premarital agreements are also enforceable.

♦ They are analyzed under a two step process focused on fairness.
o First, they must be procedurally fairness.
 Also, there can be no duress (last minute prenup), coercion, or undue influence.
 The signing party should really be given a chance to consult with independent legal counsel.
o Second, the court looks at substantive fairness. This looks at the terms of the agreement. These will
always be upheld when they satisfy the requirements of contract.
 For purposes of substantive fairness the court looks at the CHANGING CIRCUMSTANCES
between the circumstances when the agreement was made and when the prenup is enforced
(the divorce)
• So if the couple divorces after 20 yrs one party may be too old to earn an income and
this will change the provisions of the prenup to provide more support for the indigent
party
o NOTE you can never put in a prenup agreement what happens to your children-these are void as against
public policy
 Basically anything involving children are unenforceable
o In Florida the substantive standard is the OR test. It is that you need full and fair disclosure OR
it must be fair and reasonable.
o So in Florida you need to have both procedural as well as substantive but with substantive it is
an OR test.
o Here we are analyzing prenuptial and ante nuptial agreements
♦ One party Not having an attorney, alone, does not validate the prenup
♦ What Fla courts look at to determine if the agreement is fair
o 1. Time and place agreement was made
o 2. Opportunity to reflect
o 3. Statements made during presentation
♦ Fla courts look at to determine fairness
o Health
o Respective estates
o Family ties
o Do parties show that they have an understanding of the agreement
♦ The presumption is that the agreement is enforceable, its up to the party rebutting the agreement to
prove its not
6. Being Married
♦ States have Substantive and Procedural Requirements for marriage.
♦ Lex loci- if the marriage is valid under the rules where it is performed then it should be valid anywhere. The
exception to this would be same-sex marriages.
o ON EXAM
♦ Marriage evasion acts- states are allowed to decide when a marriage is valid and when its not. It prohibits
parties to go to other states to get married with different procedures than their home state. Florida has a 3 day
reflection period so if people go out of state to avoid this it can be a voidable marriage.
♦ Florida does not recognize civil unions.
♦ Full faith and credit does not apply to marriages.
o When there is a court order there is a presumption that it is enforceable in other states under full faith and
credit
o BUT if there is a conflict of law issue (or conflicts with public policy) than the state does NOT have to
recognize the marriage.
♦ The court views marriage for the case of Loving as a civil right. You can reasonably regulate it that does not
specifically interfere with the right to marry.
♦ Comity- is the full faith and credit substitute for marriage. This can also be applied to foreign countries. This is
4
 discretionary whereas full faith and credit is mandatory.
o This is applied when foreign country is involved
♦ What if its same sex marriage, but one of them is a post op tranny?
o Is this a valid marriage that is valid everywhere? Like Florida?
 It’s against public policy so NO.
 Whatever gender you are at birth is what you are under the law.
(i) Substantive Requirements -
♦ Examples of substantive regulations or requirements are:-
 Capacity to marry
 Prohibition of Incestuous marriage – marriage between blood relatives
 Age requirements- In Fla. parental consent is required for minors under the age of 18 but at
least 16 years to get married. However, no parental consent required if minor is pregnant,
or if they already have a child. Note also that there is no judicial by pass requirement here
for consent to be waived for minors to get marry.
 Regulations against bigamous /plural marriages
 State of mind restrictions – against duress and fraud.
♦ There are some restrictions or regulations that States will not be permitted to uphold. For example:-
o laws prohibiting interracial marriages have been struck down.
o Laws that did not allow people that owed child support to get a marriage license have also been held as
unconstitutional as they are not the least restrictive means.
o Even prison inmates have the right to marry if they have the possibility of parole.
o Is the state forcing a couple to go to a class before marriage permissible?
 Is this is a significant interference that may alter a person’s decision to get married?
o Degrees of scrutiny
 Rigorous scrutiny for significant interference in getting married
 Lower scrutiny for reasonable regulations that do not significantly interfere with decisions to enter
into a marital relationship (r/s)
♦ In sum therefore, States are limited in their ability to regulate marriage. Reasonable regulations that do not
significantly interfere with the decision to enter into a marriage may legitimately be imposed.

♦ If a marriage occurs in violation of a substantive restriction, the marriage could be deemed Void or Voidable.
 A void marriage is where any 3rd party has a right to attack the marriage. In other words the
marriage never existed by law. This can be attacked at anytime even after your death.
 Basically its void from the start and CANNOT be cured
 The defect is incurable as if no marriage ever occurred. It is void abinito
 E.g. incestuous marriages, bigamy, same sex marriages
 A voidable marriage where either party in the marriage may attack the validity of the marriage at
any time but it must be done during their lifetime. You cannot challenge a marriage that is
voidable when one of the parties to the marriage has died.
 Here the marriage has a defect that may or may not be curable. Eg lack of capacity (ie: drunk in
vegas), underage marriages, fraudulent marriages, marriages under duress


(ii) Procedural Regulations -

♦ There are certain procedural regulations with regard to marriage.
♦ The general rule is that States may reasonably regulate marriage provided the regulations do not significantly
interfere with the decision to enter into the marriage relationship.

♦ Reasonable procedural restrictions/regulations are:-

o A valid marriage License – Fl. Chapter 741-
o County court clerk for a fee
o Take a prep course for reduced fee
o Both should be over 18 or over 16 with a child in common

5
 o Parental consent for children 16-18 unless previously married or parents are dead
o Pregnancy is also a waiver
o 3 day waiting period
o 741.08- Solemnization – a religious ceremony
o Blood test
o Must be male and female
o Must be single individuals

♦ What are common law marriages Common law marriage requires the following four conditions:
o (1) capacity (18 and competent);
o (2) agreement to marry (intent);
o (3) cohabitation;
o (4) must hold themselves out to be married for a certain period of time.
o NOTE, Here, that there is neither a license nor ceremony.
o Divorce and death will end common law marriage

♦ NOTE Fla. does not recognize common law marriages that occurred after 1/1/68 BUT will gave full faith and
credit to them.
♦ In Fla. there is a presumption of validity where parties enter into a marriage in good faith bc the state has an
interest in preserving valid marriages.
♦ Therefore if for eg the parties did not have license, the courts may recognize the union if the parties enter into
the marriage in good faith and in substantial compliance with the Statute.

♦ Note however you cannot use the fact that the marriage may have a procedural or substantive defect to avoid
paying alimony

♦ However, states can prevent civil unions such as gays and lesbians from getting married,
♦ NOTE: Fla. does not recognize civil unions or gays and lesbian marriages bc it offends public policy.
♦ The Defense of Marriage Act (DOMA) allows states not to recognized same sex marriages from other states.
This is meant for states to be able deny marriage as against their public policy, so you don’t have to recognize it
if it is not already recognized in your state. This has two parts.

♦ You only need one parent to consent to marriage of a minor

Marriage by Estoppel
This is keeping a marriage valid even if you were in a common law marriage when someone would benefit from the
second marriage not being valid.

TRANSEXUAL MARRIAGES
• How do we treat marriages when one of the spouses had a sex change?
• Florida states that your sex is determined at birth, therefore this is a same sex marriage and therefore void. (void abini
means that it never happened)

Bigamy
Florida statute 826
826.02- Exceptions are someone who believes there prior spouse is dead, abandoned, foreign court has entered an inv
judgment and the defendant does not know this.
826.04- Incest- You can marry your cousin in Florida but other close family members you cannot. If you want to marry y
stepfather or adopted parent, the court can decide under EXCEPTIONAL CIRCUMSTANCES that they can do this.
AND A SHOWING THAT ITS IN THE BEST INTEREST OF THE CHILD.
♦ A law banning bigamy does not violate a mormon’s right to free exercise because the law is operationally and
facially neutral.
o Only requires RBT
o Advances interests of marriage as an important social unit, prevention of marriage fraud, misuse of gov’t
benefits, protecting vulnerable people from exploitation and abuse.

6
(iii) Requirements for Marriage in Florida: - (Chapter 741)
1. must have a license issued by the county court judge or clerk of the circuit court.
2. marriage license fee reduced when the parties complete a premarital preparation program.
(NO LESS THAN 4hrs to get the reduction)
3. must be a man and a woman
4. must be 18 years old and provide SSN.
5. persons under 18 years old can get married when they are 16 years or older and if
they have the consent of the parent. However no consent is required if:-
a. the parents are dead
b. the kid was previously married
c. the kid has a kid.
6. marriage must be solemnized by ordained clergy or judicial officer including retired
judicial officers, clerks of circuit court, and notaries-
a. NOTE- an attorney can solemnize a marriage bc an atty is a judicial officer.
b. NOTE –also a marriage cannot be solemnized w/o a license.
7. no incestuous marriage- no lineal consanguity- cant marry your aunt, sister or niece
8. no same sex marriage
9. no common law marriage

(iv) Putative Spouse Doctrine

♦ Question- how does Fla. save marriages that fail to comply with the
formal requirements
♦ Answer NOT under the Putative Spouse Doctrine, if the parties made a
good faith effort and substantially complied with the procedural
regulations/requirements for a marriage by trying to obtain a marriage
license or participating in a marriage ceremony in the belief that a valid
marriage occurred but was ignorant that an impediment would make the
marriage void or voidable, then that marriage is saved and will not be
void. This is an equitable remedy.
♦ - Putative spouse doctrine – for equitable remedies when a marriage is technically not valid, but
for equity reasons it would be too harsh NOT to recognize it as valid
♦ - Fla’s approach
♦ - If you KNEW that the marriage wasn’t valid then you do not get this treatment.
♦

Pregnancy
It is treated as any other disability and under FMLA (family medical leave act) the women can take
up to 12 weeks maternity leave.

(v) Annulment
Fraud- This vitiates consent so you would file a claim and the marriage would be set
aside for lack of consent. Once you consummate the marriage you cannot annul in some jurisdictions.
♦ Annulments, unlike divorce, are like the marriage never happened. It does not result in
dissolution and distribution.
♦ It applies only in the narrow circumstances for eg:-
o When there is fraud to the essentials of the marriage
o That is failure or inability to give sex,
o VD (which means state mandated blood tests are OK),
o and inability to have kids when not disclosed pre-marriage).

♦ Annulment does not apply in the following:

o lying about love to get sex, money, or citizenship.
o if one of the parties lied about getting a divorce.
o likewise, religion has not been held as an essential.

♦ Jurisdiction for these actions is domicile, the state in which the ceremony occurred, or wherever
the defendant is subject to personal jurisdiction.
7
 o The court has the authority to grant a DOM decree so long as the PETITIONER is
domiciled in the state.
♦ There is no statute in Florida on this so if you want to bring this action you have to claim
that this was fraud and use the “But for” test.
♦ This allows for more forum shopping as compared to divorce jurisdiction, which focuses
essentially on domicile.
♦ However, for choice of law purposes, the state in which the marriage occurred will control.
♦ For example a case brought in Fla. to determine if marriage that occurred in S.C. is valid will
requires application of S.C. law.

7. DIVORCE (Chapter 61)

(i) Requirements for Divorce in Florida
You have to have the intent to divorce and live apart from each other. Factual separation is
when the couple decides to separate. Legal separation is when the court decrees that the couple have
separated legally.

If you want to change your child’s name after divorce, you should change your own last name and then
go to the court for them to decide whether it is in the children’s best interest and history and tradition.

1. 6 month residency requirement –to obtain a dissolution of marriage (DOM), one of the parties
to the marriage must reside 6 months in the state before the filing of the petition.
2. must plead that:-
i. the marriage is irretrievably broken;
ii. mental incapacity of one of the parties –but here you have to wait for 3 years and
the person must be adjudicated before you get the divorce.

3. How do you prove that the marriage is irretrievably broken-all that is required is for the
petitioner to say that the marriage is “irretrievably broken” and there is no likelihood for
marriage to be saved. Even if the other party disagrees, it does not matter, he or she cannot
stop the divorce or contest the divorce itself.

4. DOM begins with filing a petition in the circuit court. Copy of petition and copy of summons
must be served on the other spouse. There is no benefit for filing first. The Petitioner pays
filing fee ($300). The Respondent doesn’t have to pay any filing fee.
5. Pro-se divorce can be filed but is disadvantageous because you don’t know the law

6. Defenses abolished: codonation, collusion, recrimination, laches. [b/c we are a no fault].

7. Divorces in Fla. Is from the bonds of matrimony not from bed and board.

8. Fla. also has an action for legal separation outside of divorce.

9. Court will not interfere with religion so if there is a GET the court cannot interfere.

10. Based on the evidence at the hearing, which need not be corroborated except to establish
residency for which can be met by a FL DL, voters card, of FL ID card or the testimony or
affidavit of a third party, the court shall dispose of the dissolution when based on irretrievably
broken as follows:

(ii) Rulings that court may enter:

♦ If no minor kid, and other party does not deny allegation that the marriage is IB, court
shall enter a judgment that marriage is irretrievably broken.
♦ If there is a minor kid, or when the other party denies the marriage is broken, the court
may
i. order marriage counseling,
ii. continue the proceeding for up to 3 months to encourage reconciliation,
8
 iii. take other action in best interest of the parties.
♦ If, during that period the court finds the marriage is or is not irretrievably broken, it
can dispose of petition accordingly.
♦ During any period of continuance, the court may make orders for support and
alimony, primary residence, custody, attnys fees, etc.
♦ Ct can deny the petition if it finds that it was not irretrievably broken.
♦ NOTE: the court may enforce an antenuptial agreement to arbitrate a dispute
in accordance with the law and tradition chosen by the parties instead of
applying state law.

(iii) Tort Claims in Divorce Proceedings

♦ Can a tort action eg. intention infliction of emotional distress be joined with a divorce suit. YES it
is permissible to bring a tort claim in divorce proceedings.
♦ In Fla. doctrine of interspousal tort immunity has been abolished so one spouse can bring a tort
claim against his/her spouse.
♦ Court has held that the joinder of tort claims to the divorce action is encouraged because it
avoids the need for two trials and can settle all of the matters existing between the parties in a
single proceeding.
♦ However, courts must be careful not to allow double recovery of damages.
♦ If the atty does not bring the tort claim in divorce proceedings he/she may be sued for
malpractice if the statute of limitation runs out.
♦ There is a bench trial for family law with divorce, but a jury case for personal injury so file the
action bringing both and bifurcate the claim.

(iv) Fault Based Jurisdictions

♦ It is important to prove fault in fault based jurisdictions b/c it acts as an absolute bar to
spousal support.
♦ Although Fla. does not require a showing of fault, other Js still do.
♦ There are three main bases of fault. They are:-
o (1) adultery;
o (2) abandoned/desertion
o (3) cruelty
♦ With regards to adultery, the burden is clear and convincing evidence that adultery actual
happened or that the person had the opportunity and disposition to do it. In Lickle, the court
inferred the latter theory when a husband slept over another woman=s house, when on vacation
with her unshaperoned, and stopped having sex with his wife. A married person and someone
else other than one’s spouse.

♦ With regard to abandonment/desertion the court has held that just because a husband spent all
his time at work and did not help much with the kids does not constitute constructive
abandonment. Constructive abandonment is when the spouses activity or intolerable conduct
forces the other spouse to leave. Have to have the intent and continue for a statutory period and
cease co-habitation without cause or consent.

♦ With regard to cruelty (aka indignities), the court in Muhammad held that the following elements
must be proven:
o (1) course of conduct of cruel behavior;
o (2) that creates an adverse health effect, does not have to be physical; and
o (3) conduct must be habitual-one incident will not satisfy the course of conduct
requirement.

(v) Defenses to fault based allegations.

♦ There are five defenses to fault allegations in fault based jurisdictions. They are:-
 (1) recrimination;
 (2) condonation;

9
  (3) connivance;
 (4) collusion; and
 (5) insanity.
♦ Recrimination means both were at fault so neither is let out of the marriage. You need clean
hands.
♦ Codonation means that the spouse did something wrong, but the other spouse took them back
afterwards, which is like forgiving the wrongdoing. The forgiving spouse is thereafter barred from
using the wrongdoing as grounds for divorce.
♦ Connivance means that the spouse consented to the wrongful conduct in that they set the other
spouse up.
♦ Collusion is where both spouse agree to commit a marital offense in order to get out of the
marriage.
♦ Insanity is also grounds for divorce as well as a defense. –In FL. Insanity will delay divorce
proceedings for up to three years

Jurisdiction for Divorce

• A state can grant a divorce even if only one of the parties resides in the state.

• Many states, including Florida, have a residency requirement (e.g. 6 months in Florida). This
residency requirement is for the purpose of establishing SMJ.

• Constitutional challenges have been made to these residency requirements but the courts have
held that durational residency requirements are constitutional because they are not a total
deprivation on the right to divorce, it merely delays it (time restriction. (Sonsa).

• Rationale for the durational residency requirement is for the petitioner to have a “modicum of
attachment to the state”. Further court said that state has a reasonable interest in imposing
durational residency because it does not wish to become a divorce mill for unhappy spouses.

• The test for durational residency requirement is a showing of physical presence plus the intent to
remain.

• The state has to have SMJ and PJ over one party you can render the dissolution of marriage
judgment. If you have it over both of them then you cannot separate property interests.

• You can make a special appearance just to contest personal jurisdiction.

• SMJ and PJ –over the Petitioner & Respondent.

• HYPO - a married couple lives in GA, and one leaves the other to come to Fla., Question: Does
Fla. have authority/jurisdiction to grant divorce.
• Answer: YES. If the spouse in Florida satisfies the durational residency requirement, then after 6
months, Fla. courts have SMJ over the divorce even without personal J over the other spouse.
• However, lack of personal jurisdiction will impede a court’s ability to adjudicate marital property
rights.
• This is known as the divisible divorce doctrine or bifurcated jurisdiction.
• Therefore, the Fla. spouse can get a divorce but will have to go back to GA., show them the
divorce decree from Fla., and then commence property division proceedings in GA.

• NOTE with respect to service, the petitioner must serve the other with Notice and if the other
spouse files an answer then he/she consents to the state’s jurisdiction.
• Thus, a state may have PJ over a spouse if:-
♦ The spouse is or was in the state, or
♦ The spouse subject him/herself to jurisdiction by filing an Answer.
• SMJ is satisfied when the petitioner meets the durational residency requirement.
• The reasoning here is that the status of marriage follows you everywhere you go and therefore
once the petitioner satisfied the DRR, then the court has SMJ to dissolve the marriage.
• The Rule is that for the purposes of divorce jurisdiction, courts must have personal jurisdiction
10
 over one of the spouse and SMJ to enter a divorce decree.
• With respect to property issues, the court must have SMJ over both parties- divisible divorce
doctrine.
• For purposes of venue, proper venue is the last place that both parties lived together with the
common intent that they planned on living there together.
• If the couple cannot pay for the divorce the court must allow the proceedings to happen.
• Lawyer has a duty to control excessive demands on his time when the other spouse is paying for
it.

• CONFLICT OF LAWS- Full Faith and Credit, Comity & Divorce

♦ RULE: Full Faith and Credit must be given to the laws of all sister states, unless doing so would
offend the law of the new state.
•
• If both parties live in Fla and files for divorce in Fla. but they own properties in Bahamas and
Aspen, does Fla courts have SMJ to divide these properties.
• YES-however, the problem is enforcement of the Order in Bahamas & Aspen

• We must look to comity to determine whether the divorce order would violate public policy if the
order is enforced.

• Whereas sister states are entitled to give Full Faith and Credit to judgments, Comity is
discretionary and depends on the following:-

♦ Due Process Notions

♦ Traditional notions of fair play
♦ Notice and an opportunity to be heard
♦ Fairness of the proceedings in the foreign jurisdiction
♦ Whether the order violates public policy of the state in which the order is being enforced.

• Comity is recognizing a foreign court order form a foreign country.

• Note that a court could have J over a divorce and UCCJEA J (because both have the same 6
month residency requirement) but still not have Personal J over the other spouse for the
purposes of Equitable Distribution, Child Support, and alimony.
• Note that under the Domestic Relations Exception to diversity jurisdiction, federal courts
are divested on the power to issue divorce, alimony and child support. These cases, in
addition to custody cases, can only be brought in state court.
• Diversity jurisdiction is not available to nonresident spouses under the domestic relations diversity
exception - fed can refuse to exercise J to hear matters that involve important state interests.

8. Equitable Distribution and Alimony:

Chapter 61 holds both ED and Alimony. – 61.075
There are community property and non- community property states. Community property states split
everything acquired during the marriage 50/50. Non- community property takes all the married property
and splits it equitably.
♦ Florida follows the ED. It is not based on fault.
♦ There is also the economic impact rule that says that if there is marital fault which negatively
affected the marital parties it will be considered during the calculation of alimony. What this is
saying is that if Fault isn’t relevant to dissolution but can consider if someone gambled it away.
♦ However, fault may play a role in the distribution of assets as it relates to depletion of marital
assets.
♦ ED requires a five step process:
1) See if there is a governing ante nuptial agreement
2) Identify the marital and non marital assets at the time that the petition is filed
(may require some asset tracing)

11
 3) Value the marital and non marital assets at FMV - (the judge has some equitable
discretion here about the date for valuation purposes)
4) Determine the percentage for distribution (presumed 50/50 unless equity dictates
otherwise)
5) Pay them out

♦ ED is in addition to all other equitable remedies,

♦ Sweat equity is also known as special equity and it is an investment of time, equity or capital in
real property that is used to improve the land like by being the homemaker.
♦ The court begins the calculation by setting apart for each spouse that spouse’s nonmarital
assets and liabilities,
♦ But the court must begin with a presumption that the distribution should be equal unless equity
dictates otherwise.
♦ The court looks at the following factors to justify whether the distribution should be equal or
otherwise. (focus on fairness):
1. the contribution to the marriage by each spouse, including homemaker services
2. the economic circumstances of the parties
3. the duration of the marriage
4. any interruption in personal careers or education opportunities of the parties
5. the continuation of one spouse to the personal career or educational opportunity of
either party
6. the desirability of retaining any asset or business interest intact and free from any
interference by the other party
7. the contribution or enhancement of marital or nonmarital assets by either parties
8. the desirability of retaining the marital home as a residence for any dependant child
of the marriage when in the child’s best interest and it is financially feasible to
maintain it until the child is emancipated.
9. any intentional waste of assets by a party
10. any other factors necessary to do equity

♦ If the award is cash payments over time, they are to be treated as a debt and do not terminate
upon remarriage or death unless otherwise agreed between the parties.

♦ The order for ED must include specific factual findings regarding the following:
o (a) clear ID of the nonmarital assets
o (b) clear ID of the marital assets, including their value and who gets them
o (c) ID of the marital liabilities, their value and who has to pay them
o (d) any other findings necessary to advise the parties or reviewing court as to why the
allocation of assets and liabilities was equitable.
♦ The final judgment shall have the effect of conveying title to the assets and liabilities contained
therein.
Three things courts look at
1. Identify marital property
- ID’d the day of petition for DOM is made or settlement agreement
- VALUED on the date
2. Marital property
3.

Marital Property
♦ Marital assets are generally defined as those assets acquired during the marriage.
♦ It acknowledges home-making services as an important and valuable aspect of the marriage
partnership when dividing assets.
♦ Marital property does not usually include things that are owned prior to the marriage, non-marital
gifts during the marriage and inheritances. Interspousal gifts are married property
♦ To Identify assets, date of filing for dissolution or prenuptial agreement.

12
Marital assets and liabilities include:
1. Assets and liabilities acquired during the marriage
2. The appreciation (active enhancement) of nonmarital assets resulting from the
expenditure of martial funds or efforts of either party. NOTE; passive appreciation or sheer
market force of an asset is not marital property subject to ED
- IE: House appreciates 50K in value so this is a PASSIE appreciation.
- IE: A business that is marital property – when husband goes to work he’s ACTIVELY
enhancing the value of it by investing his time.
3. Interspousal gifts during the marriage
4. All vested retirement benefits that accrued during the marriage

♦ Nonmarital assets and liabilities include:

1. Assets and liabilities acquired before the marriage and assets and liabilities acquired in
exchange for such assets and liabilities
2. Assets acquired separately by noninterspousal gift or inheritance or in exchange for such assets
- But if the person that inherited the property puts the funds in joint account then it becomes
marital property – so what they do with non-marital property changes everything.
3. All income derived from nonmarital assets unless commingled
4. Any liability incurred by forgery of the other spouses name
5. the test for non-marital separate property is:-
i. when was the property acquired
ii. from what source was it acquired
iii. how is title held
iv. has the property been converted to something else.
Once you do this you then look to see how it is converted to marital property:
1) Transferred
2) Enhancement to the non marital assets
3) Joint account
4) Commingling
The exceptions are pensions and they will never be marital property when it is in
the account while working. After working and when collecting, that will become a marital
asset.?????????????????????
- EXCEPTION: H and W made 200 and 500K a year respectively. W put all her
dough in her pension and H supported both of them with his 200K. The result – Pension
becomes marital property.

♦ The cut off dates for property determination is either (whichever is earlier)
o (1) the date that the parties entered into a valid separation agreement or
o (2) the date when a petition for dissolution is filed.
♦ The judge can value different assets at different dates [this is an equitable provision].

Commingling issues
♦ Some issues arise in determining whether something is marital or not when commingling occurs.
♦ If a spouse uses non-marital assets to buy something used by both in the marriage, it is
considered marital.
♦ Likewise, if martial efforts are used to improve a non-marital asset, it may become marital too.
♦ This constitutes active appreciation. However, if a non-martial asset passively appreciates
(i.e. market forces), then it remains non-marital.

Law degrees & Pensions

♦ Some assets, like a degree, are not considered marital assets. A law degree is intellectual
property and not transferable. However, the court may use the degree to determine the
distribution of marital assets
♦ Pensions are peculiar in that they are not available yet and they are administered by a 3rd party.
Therefore the spouse must get a QDRO –Qualified Domestic Relation Order that goes to the
Administrator of the pension plan instructing them to pay $X to the non-participating spouse. In
FL. the existence of the pension plan is considered a non-marital property because he has no
13
 choice but to keep it in there. If it’s an existing pension and is still working it is a non-marital
asset.
♦ Stocks can be non-marital assets but any money coming out of the stocks can be considered
marital assets.
♦ She must live long enough to get it, so these are often bargained away for liquid assets.

Valuation- when identifying assets it’s whenever the court thinks its fair
Depletion issues- economic impact rule
♦ Depletion of assets is a concern too.
♦ Generally, if assets decrease due to pure market forces, they will not be considered depleted.
♦ If they were actively traded and diminished as a result, they may be considered depleted.
♦ The significance of depletion is that the responsible spouses’ share will be reduced by the
depleted amount.
♦ You cannot go back more than two years to when proving depletion.
♦ When looking to depletion we look to
o 1) motive
o 2) past practice of the spouse
 IE: has he always invested in the market?
o 3) Consent and
o 4) Decision solely for the benefit of both parties or one party?

Special equity is also available.

♦ It is only applied to real property. It must be timely claimed or forever lost.
♦ This is like a ‘sweat equity’- something above and beyond marital duties

Debts awarded in ED
♦ Question? What happens to the mortgage if wife is awarded home.
♦ Answer: The mortgage continues in existence and wife name is added to the mortgage contract
or an agreement is made for wife to refinance home and have husband’s name taken off
mortgage.
♦ The reasoning is that court has no authority to change the contract provisions in a 3rd party
contracts
-
NOTE ED, unlike alimony and C/S, is NOT MODIFIABLE.
ED IS DONE BEFORE AND WITHOUT REGARD TO ALIMONY.

♦ Jurisdiction for the purpose of ED is in any judicial district that has PJ over the ex-spouse.
♦ Note that a court looks backward when calculating ED but looks forward with Alimony.
♦ PARTITION of REAL PROP
o A married couple owns prop as a T by E
 Which means one spouse can’t alienate the other out of the prop
 Special protections so creditors against one spouse can’t attach to the prop


Alimony

♦ This is done after ED and without regard to the distribution of ED.

♦ The test in Florida is 1. need and 2. ability to pay
♦ Alimony is an equitable award designed to provide for a dependent spouse based on the
dependent spouse contributions, both monetary and nonmonetary, to the marriage.
♦ This remedy comes from the traditional role of wives as depending on their husbands for
support. However, it applies to both sexes under EP.
♦ The Rule is that no spouse should pass from misfortune to prosperity.
♦ Non-marital assets can be used to pay alimony. Marital fault can play into alimony.
♦ The economic impact rule says that where marital fault has negatively affected the economic
status of the parties it may be considered in the calculation nof alimony. Ex: gamble away
savings.
14
♦ There are a variety of alimony payment schedules. They are as follows:
1. Lump sum - This is paid once or over time
(although not permanently).
2. Rehabilitative – This is paid to encourage a
spouse to rehabilitate their career and earning
capacity. Usually for a short term marriage 2-13
years.
3. Permanent periodic - permanently and
periodically. Usually 13 years of marriage and
beyond. The longer the marriage the more likely
this type of payment schedule will apply b/c no
reasonable opportunity to become self sufficient
4. Bridge the gap - given to bridge the gap
between dependency and independency. This
is similar to rehabilitative but for shorter
marraiges
5. Temporary/Pendent Lite (Pending litigation)
- while the suit is going on and before the final
judgment.

♦ Note that you must request and obtain Alimony at the time of final judgment of the divorce or it
is waived forever. In other words, alimony must be claimed for during the litigation, if not it is
claim precluded and forever barred.
♦ Therefore, it is wise to pursue an alimony award, no matter how small, as you can always
petition for upward modification later based on substantial and material change should the
other ex spouse’s finances improve.

♦ Another attractive aspect of alimony is it carries contempt consequences for noncompliance.

♦ Therefore, if a mortgage payment is awarded, you want it classified as alimony. That way, if the
obligor does not pay, they can go to jail.
♦ If it were classified as ED, the consequences would be less severe.

♦ ED can be discharged in Bankruptcy whereas alimony and child support are not
dischargeable through bankruptcy.

♦ Alimony depends on [need and ability to pay].

♦ The court may consider Adultery in setting the amount. Therefore fault is a relevant factor for
purposes of alimony. However, the longer the marriage, the less significant fault is.
♦ In making the award for Alimony the court considers the following factors:-
a) The standard of living established in the marriage
b) The duration of the marriage
c) the age and condition or each party
d) the financial resources of each party
e) the marital and nonmarital assets and liabilities distribute to each under ED.
f) The time for party to acquire education or training for employment
g) contribution to the marriage, including homemaking
h) all sources of income available to the parties.
i) Any other factor necessary to do equity and justice b/t the parties.
♦ Court can order party who is order to pay alimony to purchase life insurance to secure the
alimony.
♦ COBRA BENEFITS??
o

Modification and alimony

15
 ♦ Once alimony is awarded, it can be modified.
o The court loses jurisdiction once it enters final judgment
 Res judicata, collateral estoppel.
♦ Alimony orders can be modified in the circuit court where either parent or the child resides or
where the original order was rendered.
♦ You can modify alimony when there is a material change in circumstances on the part of the
payor or payee
♦ Voluntary reduction of income cannot serve as a basis for modification
♦ remarriage terminates alimony obligations unless there are exceptional circumstances, (Keller),
or at the least should be considered evidence of need to terminate it.
♦ In Fla. remarriage and alimony is not in the Statute, but Fla. follows the modification for
substantial and material change rule.
♦ In calculating alimony, the court can use non-marital assets to determine or to pay alimony.
♦ A spouse can also apply for alimony and child support (unconnected to divorce) in cases of a
legal separation. NOTE: parties must be married but not living together to claim this.
♦ Alimony is taxable and deductible. But, child support is not taxable and non deductible.
o The person receiving the money the oblige is taxed for the alimony received as if it were
income
o NO TAX CONSEQUENCE FOR ED


Tort and Criminal law

The tort claim of alienation of affection does not exist in Florida. There is NO interspousal immunity so
they cannot sue each other but the exceptions are when one spouse passes an STD or when the spouse
violates the anti-wiretapping laws.
- Can a spouse sue the person who their spouse had an affair with?
- Yes for alienation of affection BUT it has to be intentional malicious conduct that would get her
to leave her husband.
- There is NO privilege to rape your wife. So if you rape your wife it is considered rape in most states.

9. Child Support- Chapter 61

♦ In Fla. Child support is calculated using the Shared Income Approach- This is a proportionate
share calculation model.
♦ IN FL. for purposes of identifying marital assets, it is the date of filing for dissolution or prenuptial
agreement. Valuation takes part whenever the court deems fair.

♦ There is a presumptive award that the court shall order for child support, but the court has
discretion to deviate from this presumptive award.

♦ If the court deviates by 5% or less then there is no need to make a finding of fact to justify the
deviation.

♦ However, if the court deviates more than 5%, the court must give a written finding explaining
why that amount is appropriate.
♦ The factors for deviation are:
1. need of kids
2. age
3. station in life
4. standard of living
5. financial status and ability of each parent

♦ If the amount is more than 15% or $50 then that is modification- substantial material change in
circumstances.

♦ C/S is done after ED and alimony, as alimony is income to the recipient and included in the
earnings for the purpose of the calculation.
♦ Note also that health insurance and day care are separate and in addition to C/S.

16
 ♦ In Fla. the law does not require post-majority support for children beyond the age of 18 years
unless the child is 19years and is still enrolled in school.

♦ Note an allegation that mother lied about contraception will not get you out of c/s
payment/obligations

♦ If a person does not work, a minimum wage salary is imputed to them. Also, in the case of
purposeful underemployment, additional income is imputed to that person.

♦ A person who violates this section can be punished by contempt.

♦ Court can issue IDO’s –Income Deduction Order. This goes with all c/s orders in Fla.
♦ The IDO is issued to the parents employer to take money out of your income to pay c/s. The
Order is issued to a 3rd party and must be complied with.
♦ If the parent is the head of his household, then the amount deducted is 55% of net income. If
parent is not head of household then 65% of net income.

♦ Failure to pay support can result in:-

o revocation of professional licensure.
o suspension of DL and car registration.
o can be reported to credit agencies.
♦ There is also contempt, which can impose jail time. But, the wrongdoer must be given an
opportunity to pay the obligation before he is taken. This is called purging himself.

Modification of Child Support

♦ Standard for modification of c/s is there must be substantial material change in
circumstances since the entry of the final judgment.
♦ Having more children is not a substantial material change that will be grounds for modifying c/s
payment.
♦ Court says that first set of kids get priority in c/s because having additional kids cannot support a
modification.

♦ If you change job, it must be a bonafide career change otherwise this attempt to reduce child
support payment will not be tolerated.
♦ In sum you cannot use a voluntary action to reduce c/s obligation.

♦ Ct can modify up to 10% without explanation, but details are otherwise required.
♦ Modification can be granted even if the party did not comply with the old order.

Retroactive support.
♦ The court has discretion to award two years retroactive c/s BUT only when it is an initial
determination for c/s. The court has discretion to do this but does NOT have to.
♦ pIn a modification for c/s, court cannot award retroactive c/s because of res judicata. Meaning
that a valid c/s order is already in existence, therefore you cannot modify an existing order
retroactively.

How to calculate child support payments

♦ First step is to determine the monthly net income for both parent. [Net income includes support
payments from a previous marriage and current alimony award].

♦ Next you Add or combine the net income of the parties together.
♦ Then look to the Table in the Statute for the number of kids that corresponds to the combined
net income. – The amount indicated tells you the monthly payment for child support.

♦ Then you determine each parent % share of the amount indicated for child support payment. –
17
 To do this you divide each parent net monthly income by the total/combined net monthly income.

♦ Once you get the % share, you multiply that amount by the monthly payment for c/s indicated in
the table.

♦ To determine each parents weekly child support payment, you then multiply the results by the
amount of weeks in a month.[There are 4.3 weeks in a month.]

♦ With respect to medical expense and insurance, you calculate these separately. Each parent will
pay their %share of these expense. (that is the %share determined above]

♦ With respect to daycare, 75% of the cost for daycare is subject to calculation for c/s payment.
The first 25% of the daycare cost is paid by the custodial parent. Thus if daycare is $400, Mom
(custodial parent) pays the first 25% of the $400. The remaining 75% or $300 will be paid
proportionately according to the %share calculated above.

♦ When the parties share custody, then a gross-up method is used to calculate c/s

♦ Attorney’s Fees -Either party can get fees, even if they don’t prevail, as it is usually the party
that can afford the better lawyer that wins. The fee award, however, must be reasonable.

♦ Chapter 88- Uniform Interstate Family Support Act

These acts have been made to make calculation of child support easier by making a
national system.

10. Child Custody (Chapter 61)- DO not use the term “custody” on the final.
♦ Custody in Fla. has two parts:
o shared parental responsibility and
o primary residential custody.
♦ They are both guided by the child’s best interests.
♦ Best interest standard: based on a list of factors regarding the child’s needs. The best interest
of the child does not have a plain definition but you have to go through factors instead.
♦ In Fl. the primary caregiver presumption is not used as a matter of law or as a matter of fact but
it is important as one of the factors for best interest. We also see that race can be a factor but
just not a sole factor.
♦ The court used the nexus test for same sex couple situations. Here they use the health, safety,
and welfare test.

♦ In custody cases there is a two fold presumption:-

o 1. shared parental responsibility-this means that parents should share and
participate in the decision making responsibilities of the child
o 2. primary residential custody- this means that parents are fit and appropriate to
have custody of child

♦ When a parent seeks sole parental responsibility of the child, then that parent must then rebut
the presumptions and prove that it would be detrimental to the child for there to be shared
parental responsibility (ie it would be detrimental to the child for the parents to
participate in decision-making process affecting the child.
♦ In other words, the parent must prove that it would not be in the best interest of the child
for the parents to participate in the decision making process affecting the child.
♦ Presumptively both parents are fit to get custody of the child, but the focus is not
unfitness of the parents, YOU MUST PROVE DETRIMENT.

♦ There must be a nexus between the parent’s conduct and why it would be bad for the
parents to participate in the decision-making process.

18
 ♦ An example is where the [bad] parent is abusing drugs or DV. It would not be in the best interest
of the child for such a parent to participate in the decision making process for the child.

♦ The best interest standard is subjective and indeterminate. It appeals differently to different
judges. For example:-
o The tender year’s presumption of gender based best interest was struck down under EP
(Devine).
o The primary caretaker presumption is reduced to a mere factor, as it is quantitative and
not qualitative and circumstances may change.
o Interracial marriage cannot be a factor unless tied to a child.
o Religion cannot be a factor, even if in premarital agreement. (Abbo - note also that
where kids will live or who will get custody can not be predetermined by contract).
o Interracial marriage and homosexuality cannot be a factor unless there are or will be
adverse effects on the kid. (Palmore; Delong).

Shared parental responsibility and primary residential custody

♦ The court must use best interest of child as their base for custody determinations.
♦ It is the policy of the state to assure that each kid has frequent contact with both parents after
they separate and each share in the rights and responsibility of parenting.
♦ There is no gender presumption for the purpose of deciding custody.
♦ The father should be given same consideration as mother in determining primary residence,
irrespective of age or sex of child - although other jurisdiction still uses this as a factor.

♦ PRESUMPTION is that parental responsibility should be shared unless it is found that it

would be detrimental to the child.
♦ Evidence of a felony or domestic violence creates a presumption of detriment.
♦ If not rebutted, shared parental responsibility, visitation, and residence may not be granted to a
convicted parent.
♦ Court can then order sole parental. Even if there is no conviction, domestic violence or child
abuse SHALL be considered as evidence.
♦ Court shall consider expressed desire of parents for parental responsibility and can grant either
parent responsibility over certain aspects of kid’s welfare when in the best interest of kid.
♦ They can include primary residence, education,or medical.

♦ Parents shall not be denied access to child’s records unless court order.
♦ For shared parental and primary residence, best interest of child includes:
o You cant reduce all these to memory, but knowing 6 or 7 is solid
(1) [most important] parent that will allow kid access to other parent
(2) love and emotional ties w/ parent
(3) capacity to provide for kid
(4) length of time kid has lived in a stable environment
(5) permanence of proposed custodial home
(6) moral fitness [must be tied to child like gays]
(7) mental and physical health of parent
(8) home, school, and community record or child
(9) reasonable preference of kid if its maturity makes it relevant
(10) willingness and ability of parent to facilitate relationship with the other
(11) whether either party has provided false info in proceeding
(12) evidence of domestic violence
(13) any other factor

♦ The following explain the variety of available custody arrangements:

Supervised visitation parties often mutually agree upon a person to supervise the visitation; often
a person who has a relationship with the child so that the child does not feel uncomfortable;
basically a 3rd party to baby-sit the interaction

19
 Therapeutic Visitations: moves to a goal of establishing a relationship with the child and the
parent; expert observes

Graduated Visitation: the length of time for the visitation gradually increases

♦ Ct assumes shared parental responsibility is proper based on the statutory factors unless there is
evidence of detriment to the child.

Custody and Domestic Violence (DV) issues

♦ When there is DV, it is critical in custody determinations.
♦ In Fla, evidence of DV creates a presumption of detriment to the child (necessary for sole
parental responsibility and residential custody).
♦ Even if there is not conviction, the court SHALL factor this as evidence of detriment.
♦ Also, willful and intentional failure to pay child support, where there is a sufficient nexus, can
support a detriment allegation.
♦ However, if the court finds that a parent is entitled to visitation, it frowns of self-help when the
other parents think they are wrong. (Hanke).

♦ When deciding whether to put a kid on the stand for custody proceedings, look at age, maturity
and intelligence.
♦ There is no magic age, but 12-13 is often the minimum. In Florida, an order is required if under
16 .
♦ Children can state their preference, and court will consider it as a factor, but child’s preference is
not binding.
♦ Fla. judges have interest in talking with children bc it is inappropriate to place child in a position of
guilt in stating their preference

Modification of Custody Orders

♦ Once granted, custody orders can be modified.
♦ The modification standard in Fla. is that you must prove substantial material change in
circumstances of the child to justify a modification
♦ The change in circumstances must be since the entry of final judgment and w/I the best interest
of the child.
♦ a preponderance of the evidence that a substantial and material change in circumstances has
occurred.
♦ However, not all substantial and material changes are applicable.
♦ For example, if the allegation could have been brought in the initial proceeding, collateral
estoppel will prevent their subsequent allegation at a custody modification hearing.

♦ Modification also differs in that the court is not writing on a clean slate.
♦ The court has already made a prior best interest determination and the movant at a modification
hearing has the burden of proving the substantial and material change and indicates that the
best interest of the child is satisfied by a modification.

♦ Note that abuse can be grounds for modification under Chapter 61, in which case it will be heard
by the same judge that made the initial determination, or under ch. 39 for dependency.

Visitation factors
Chapter 752- Grandparents can bring a petition and have limited standing. They can get visitation when
the marriage has been dissolved, the child is a bastard, or when there is some harm. The only argument
in Florida is that the person is not acting in the best interest of the child.

A child must be older than 16 to decide where he wants to reside. This is unless there is an order in
advance permitting the testimony of the child. Anytime under 16 years old you need an order.

Guardian ad litem- This is deciding in the child’s best interest

Attorney ad litem- Advocating for the child’s position whether or not it is in the child’s best interest.

20
Relocation and Custody
♦ No presumption arises in favor of or against the primary residential parent when he/she seeks to
move the child and relocate.
♦ However, in making a determination as to whether the parent may relocate with the child, the
Court must consider the following factors:-
1. whether the move is likely to improve the general quality of life for the residential parent and child
2. The extent to which visitation rights have been allowed and exercised
3. Whether the relocating parent will comply with new visitation arrangements
4. Whether the new visitation arrangements will be adequate to foster continuing meaningful
relationship between child and other parent
5. Whether the cost of transportation is financially affordable
6. whether the move is in the best interest of the child.

Custody Jurisdiction –UCCJEA- 61.501

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
♦ UCCJEA Defined - A court has the jurisdiction to make an initial child custody determination
(first time case before the court for adjudication) only if:-

o the state is the home state of the child within the last 6 consecutive months prior
to commencement of the proceeding

o if the child is absent from the state, the court still has jurisdiction for up to 6
months
- example: Robin files for divorce from her husband in Florida. After the commencement of the
proceedings, Rochelle, Robin’s daughter, goes to live with her father in New York. The court in Florida
still has initial jurisdiction and home state jurisdiction.

♦ For an infant younger then 6 months old, the home state is the state in which the child lived from
birth

♦ If the child was not within the state at least 6 months prior to the commencement of the
proceeding, the court lacks subject-matter jurisdiction to proceed as the home state of the initial
child custody determination

Purpose of Act
1. to deter parental kidnapping
2. for child custody issues to be resolved by the local jurisdiction, the jurisdiction
where the dispute arose
3. avoid jurisdictional competition and conflict between 2 states

♦ The UCCJEA must be filed in every child custody case and is a uniform requirement in every
state

♦ A UCCJEA affidavit must be filed in every custody matter. The affidavit provides detailed
information on the child’s residency for the last 5 years which helps to determine if the court has
jurisdiction

♦ The UCCJEA affidavit is prima facie evidence whether or not the court has jurisdiction
Exclusive, Continuing Jurisdiction
♦ A court that enters the initial custody order has exclusive, continuing jurisdiction as long as child
and one or both of the parents remain within the state and has continuing contact with the state

♦ If both parents leave the state, the state no longer has exclusive, continuing jurisdiction
♦ The rationale here is that the court is trying to avoid one parent leaving the state and filing for a
21
 modification of child custody within the foreign jurisdiction and the remaining parent having to
litigate the case in a foreign jurisdiction

Jurisdiction to Modify a Determination

♦ a court of this state may not modify a child custody determination made by a court in another
state unless
a. this state has jurisdiction to make an initial determination OR

b. the court with the initial jurisdiction no longer has exclusive,

continuing jurisdiction and a court of this state would be a more
convenient forum OR

c. the other state no longer has jurisdiction and this state has the
jurisdiction to modify the child custody

Temporary Emergency Jurisdiction

♦ A court of this state has temporary emergency jurisdiction if the child is present in the state
and the an emergency arises while the child is within the state if the child need medical
attention, has been abandoned, or subject to or threatened with mistreatment or abuse
♦ the emergency must be legitimate
♦ the court can only use it temporary emergency jurisdiction as long as the emergency exists
♦ once the emergency is over, the court looses its temporary emergency jurisdiction

Simultaneous Proceedings
♦ if the parties file a petition for dissolution of marriage or child custody in 2 different states, only
one court should have the home state jurisdiction to decide the issues presented by the petition
♦ the court of this state should determine which court has jurisdiction
♦ 2 courts cannot have jurisdiction over simultaneous proceedings

Decline of Jurisdiction
♦ if a court of this state has jurisdiction because a person seeking to invoke its jurisdiction has
engaged in unjustifiable conduct (i.e. kidnap child, bring to Florida for 6 months, then files a
petition), the court can chose to decline its jurisdiction

Parental Kidnapping Prevention: Full, Faith and Credit

♦ the court will enforce and will not modify a determination of custody by another state when the
court fails to have jurisdiction
♦ however, a parent can take the initial custody order entered by another jurisdiction to a Florida
court and get it domesticated so that the Florida court will have jurisdiction to enforce the order

Parental Kidnapping Prevention Act (PKPA)

♦ PKPA requires that all states give full, faith and credit to a custody and visitation decrees of a
sister state which is determined to be a home state for the child (standards to determine home
state is similar to those set out in the UCCJEA)

International Child-Abduction
♦ in response to children being abducted either to or from the United States, the Hague
Conference on Private International Law adopted the Hague Convention of the Civil Aspects of
International Child Abduction
♦ 70 nations are signatories to the Hague Convention
♦ the goal of the Hague Convention is to secure the return of children who are wrongfully removed
from or retained in a signatory nation and to return the child to the country of residence

♦ Question: is there justification under the UCCJEA for the courts to have jurisdiction over
a child that has been wrongfully removed from a state jurisdiction
♦ Answer” YES- This is based on the provision for the exercise of emergency jurisdiction in
the UCCJEA.
22
Custody and support of kids.
♦ Court has continuing J over its support judgments.
♦ Must include health care coverage for the kid.
♦ They often have to go though a depository.
♦ Ct can order an unemployed obligor to get a job and set up a bank account for payments.
♦ The court has J to determine custody even if the kid is not present in the state if it appears the
child was removed to avoid custody determination or modification.
♦ Mediation is authorized in every custody dispute. It is confidential but it does not mean that
parties will not discover confidential information.

11. Relative custody care or Temporary Custody

by Extended Family (Chp 751(ON EXAM!!!!!!)
♦ Statute recognizes the extended family
♦ Extended family is any family composed of the minor child and a relative who is the child’s:-
 The child’s brother
 The child’s sister
 Grandparents
 Aunt
 Uncle, or
 Cousin
♦ Purpose of Statute is to place minor kid in temporary custody of relative who is better able to
care for the kid.
♦ Any of the above persons may petition the court for temporary custody of the child
♦ Requires parent’s consent, or the petition must state the circumstances of the child’s current
living situation with the petitioner.
♦ Do not need to prove any problems with the parent’s ability to care for the child.
♦ This procedure keeps kids out of the Ch. 39 Dependency process.
♦ Step parents are permitted custody only when unfitness of parents is established.
♦ 751.03 same grounds for dependency (abuse, abandonment or neglect)
♦ Standard of proof is clear and convincing evidence (to keep meddling relatives out of your private
life)

12. VISITATION

♦ Procedurally, if a parent request the court to order a restriction on visitation, that parent bears
the burden of proving the need for the restriction.
♦ For eg if a parent wants supervised visits then they must show a nexus between the parental
conduct and the harm to the child.

♦ If a noncustodial parent fails to pay child support, this does not affect their visitation rights.
Visitation and child support are not reciprocal.
♦ In other words, court cannot suspend visitation if non-custodial parent is not paying child
support.
♦ Court can only suspend visitation if there is an issue of detriment to the child.
♦ You must establish conduct and detrimental effect on the child- failure to pay child support is
not neglect w/i the definition of the statute.

Grandparents Visitation Rights

♦ Grandparents can only have court-ordered visitation w/children if:-
o 1. parents are NOT married, or
o 2. parents are married BUT MARRIAGE NOT INTACT.
o 3. parents are married but one parent has abandoned or deserted the child.
♦ Rationale is to preserve the sanctity of marriage. When no marriage is intact then it would be
beneficial for child to have support of grandparents.
o get visitation if in the best interest, but need not be made a party to the proceeding.
23
 ♦ If the kids is actually residing with the grandparent in a stable relationship, the court may
recognize the grandparent as having the same standing as parents for evaluating custody and
the kid=s best interest.
♦
♦ The Court in Troxel examined GP visitation.
♦ In Troxel statute was very broad bc it allowed any person to petition for visitation at any time
♦ The person(s) did not have to prove anything. Statute runs afoul of the family unity and parental
autonomy. Problem with statute was that it is overbroad

♦ It recognized the changing demographic of the average American family, which now often
includes close relationships with third parties (like grandparents),
♦ But court held that statutory recognition of 3rd party visitation rights comes at a substantial cost -
they burden the traditional parent-child relationship. And, this relationship is a fundamental
privacy right.
♦ The parent’s interest, however, decreases when they are found unfit, as such conduct can be the
basis for state intervention.
♦ Also, the parent’s right is strongest when there is an intact marriage, as this implicates additional
privacy rights.

♦ Third party visitation with regard to non-relatives is even more difficult to establish.
♦ Except for exceptional circumstances, 3rd parties do not have standing.
♦ 3rd parties do not have rights unless it is established as a matter of law (by marriage, blood
relation, adoption rights) and by statute.
♦ In Fla, however, only GP have standing to request custody. In other words only GP are the only
3rd party that are recognized. No other non-parents are recognized.

13. Adoption (Chapter 63)

♦ Adoption under Chp 63 is for private individuals. Here the child is not given over to the states.
The child is not a dependent of the state.
♦ Therefore for adoption to proceed under this statute there must be an identified adoptee (child)
and identified adoptive parent.

♦ The only fault basis justifying adoption under this statute is abandonment.
♦ This is because the other justifications (abuse and neglect) can be cured but the parental defect
of abandonment cannot be cured bc there is no one in reality to rehabilitate.
♦ Abandonment is where a parent or person who has legal custody of a child, while being able to,
makes no provision for the child’s support and makes little or not effort to communicate with the
child.
♦ In essence there is an intent to reject parental responsibly.
♦ Findings of abandonment must be based upon clear and convincing evidence that a parent
or person having legal custody has abandoned the child.
♦ Adoption terminates the rights of biological parents

♦ Chp 63 has a two step process:-

1. terminating parental rights (this is different from dependency cases)
2. the Adoption process itself

♦ Who may adopt or be adopted – Any person may be adopted –either a minor or an adult. But
only the following persons may adopt:
1. H & W jointly;
2. an unmarried adult, (single unmarried adult) or
3. a married person w/o the other spouse joining as a petitioner, if the person to be
adopted:-
 is not his or her spouse,
 and if the other spouse is the parent of the person to be adopted and consents.

24
 ♦ NOTE Homosexuals are not eligible to adopt.
♦ If you have a physical disability you can adopt if the disability does not substantially interfere with
your ability to care for the child.

Grandparents right to Adopt

♦ NOTE Grandparents have a right to adopt – They are given first priority for adoption
where the kid has lived w/the grandparents for at least 6 months within a 2 year period
immediately proceeding the filing of a petition for TPR pending adoption
♦ Grandparents are the preference group in adoptions under Chp 63.
♦ The law states that the adoption entity must provide notice to the grandparents as to the hearing
for TPR pending Adoption.
♦ In general relatives will win over non-relatives bc the state’s goal is to keep family together-in
other words, the least restrictive means.

Rights of adopted children

♦ Children who are adopted may be able to receive social security benefits (death benefits)
from their natural parents)
♦ Adopted children can also inherit from their own adoptive parents
♦ They get a new birth cert
♦ Divorce does not affect the status of adopted children. They are treated the same as
natural children.

Who are required to give consent to adoption?

1. Persons required to consent to adoption are the parents of the child-
 mother and
 father –
• NOTE – the consent of an unmarried biological father is needed only if
he has developed a substantial relationship with the child.
• In other words consent is waived as a matter of law if the father has not
fulfill his responsibility to the child.
• In order for an unmarried biological father to preserve his right to
get notice and consent to an adoption, he must register with the
Putative Father’s Registry by filing a claim of paternity.

2. Persons whose consent is needed may also execute an Affidavit of non-paternity.

3. If the child is 12 years or older, then the child’s consent is necessary unless the court in
the best interest of the child dispenses with the child’s consent.

4. A minor parent has the power to consent to the adoption of his/her child. If child under
15 you need permission of parent or guardian.

5. In the first stage of the Adoption proceedings here, a petition to TPR pending adoption
may be granted:-

 if written consent has been executed after the birth of the child
 or notice has been served to the mother and father and the minor child
 Notice is given to the father only if:-
• The child was conceived or born while the father was married to the
mother
• The child is the father’s child by adoption
• The child was established by court proceedings to be his child
• The father filed an Affidavit of Paternity as to the child.
When can you obtain the consent to adoption
6. The Consent shall not be executed before the birth of the child. In other words you
cannot obtain the consent of a pregnant woman for adoption in Fla.

25
 7. You can only obtain the consent of the birth mom no sooner than 48 hours after the
child’s birth or after the mom is released from the hospital .
8. However, with respect to the biological father, you can obtain his consent at any time
after the birth of the child.

Revocation of Consent
9. If the minor child is a newborn-up to 6 months, then the Consent to Adopt is valid upon
execution and you cannot revoke your consent unless the court finds that the
consent was obtained by fraud or duress. In sum then, for newborns there is no
window for birth mom to revoke consent and she cannot get the child back unless
she proves fraud or duress.
10. If the child is older than 6 months then the Consent is subject to a 3 day revocation
period, or the consent may be revoked at any time prior to placement of the child
with the prospective adoptive parents whichever is later.

♦ NOTE, you cannot bring any lawful remedy to compel the adoption of a baby or the production of
a child. You can only get back the moneys paid under the Adoption Agreement/Contract but you
cannot get the baby.
♦ In other words, you cannot force delivery of the child
♦ Further, the payment of medical expenses by the prospective adoptive parents prior to the birth
of the child does not, in any way, obligate the birth parent to sign the consent for adoption

♦ Consent must be signed in front of 2 witnesses and notarized.

Final home investigation
Only don’t need when step parent or minor is related to one adoptive parent within 3 degrees of
consanguinity.

Persons whose consent may be waived

♦ The court may waive the consent of the following persons to an adoption:-
1. a parent who has deserted or abandoned the child
2. a parents whose rights have been TPR by Order of the court
3. a parent who has been judicially declared incompetent
4. a legal guardian or custodian who failed to respond in writing
5. the spouse of the person to be adopted if there is prolonged and unexplained absence
Affect of final order relieves birth parents of all parental right and creates a legal relationship with all
adoptive parents.

Any defect in the adoption is cured within 1 year if not challenged.

Birth mom can change her mom from preplanned agreement if there is not biological connection to
adoptive parents.

♦ Open Adoptions (post adoption communications)

♦ In Fla. open adoptions are permissible
♦ The law states that adopted minors have the right to have the court considered the
appropriateness of post adoption or continued communication or contact w/siblings, with the
biological parents or other specified biological relatives.
♦ In making the determination the court considers recommendations by DCF (in dependency
adoptions), recommendations by GAL; statements by the prospective adoptive parents and any
other information deemed relevant.

♦ If the post adoption communication is in the child’s best interests then the court shall allow/ order
the contact or communication w/ siblings or other biological relatives and stipulate the frequency
and nature of the contact/communication.
♦ This order shall be part of the final adoption order BUT THE VALIDITY OF THE ADOPTION
SHALL NOT BE CONTIGENT UPON SUCH POST ADOPTION
COMMUNICATIONS/CONTACT
26
 ♦ Question therefore is whether an agreement to give grandparents post –adoption visitation rights
enforceable?
♦ Answer- This agreement or provision in the adoption proceedings does not affect the validity of
adoption so the agreement is essentially illusory.
♦ The adoptive parents can stop post –adoption contact and communication and this will not affect
the validity of the Adoption. The adoptive parents can even leave the state after adoption.
♦ The natural parents does not have any fraud argument here bc the court will look at the best
interest of the child.
♦ The only right the parents/ grandparents may have is to ask the court to enforce the visitation-
contact or communication.

♦ Comparing Chp 39 and Chp 63 proceedings

♦ The issue essentially is whether there is CONDITIONAL CONSENT TO ADOPTION.
♦ Answer- there is no conditional consent to adoption. Consent is permanent. [Note also that there
is no CONDITIONAL SURRENDER IN CHP 39.
♦ SURRENDER is a simple legal doc purporting to surrender your rights and the child into DCF’s
custody for subsequent placement in a TPR case.
♦ When you surrender your parental rights to the Dept-the court then reviews it and decide whether
to accept it or not) So in Adoption proceedings under Chp 63- there is no CONDITIONAL
CONSENT, and under chp 39 there is no CONDITIONAL SURRENDER.

♦ The proceedings under Chp 39 are much easier than Chp 63 bc under the former the child is
already in the courts system, so certain requirements may be waived.
♦ Further, under Chp 63, the child is not in the custody of the state so the parent has more control
under Chp 63 than Chp 39.
♦ However it is important to note that even in dependency proceedings, parental rights are in tact
until they are terminated by the court.
♦ The question therefore is whether a parent who is faced with TPR can cheat the state by signing
a Consent for someone to adopt the child, when the state has the child and the child has been
adjudicated dependent.
♦ Answer, it appears that you can bc you still have parental rights up to when the court TPR.

Termination phase of adoption

♦ No home study is required for step-parent or relative adoption.
♦ The reasoning is that the state prefers relative adoptions because it encourages family bonds-
keeps families together.
♦ Unlike relative adoptions, a favorable home study is required for non-relative adoption before
placement. This is not required for relatives.

♦ The effect of the Judgment for Adoption is that it relieves the birth parents of all parental rights
and responsibilities
♦ It also terminates all legal relationship with relatives
♦ It creates a legal relationship between the child and the adoptive parents.

♦ Preplanned Adoption Agreements

♦ This is where the mom is not yet pregnant but an agreement is made with a prospective birth
mother to bear a child.
♦ This is available to single individuals
♦ The intended father or mother can opt out of the agreement at any time prior to adoption
♦ The intended father also has parental responsibility.

14. Parentage or Paternity issues (Chapter 742)

♦ Proceedings to establish the identity of the biological father are often necessary for child
support, as well as inheritance purposes
♦ The standard of proof for paternity not in FLA. Is Preponderance of the evidence.
27
♦ In Fla. if the parents are married, there is a rebuttable presumption that the husband is the
father of the child.

♦ The allegation that the child is not the child of the husband must be factually plead, an GAL
appointed and recommendations given even before a blood test is given to determine the
paternity of the child.

♦ If a husband holds himself out as the father of a child born during the marriage, there is
a strong presumption that the husband is the father because in an intact marriage the
presumption is the husband is the father of the child

♦ During an intact marriage, a putative father cannot assert a claim for paternity because u
cannot invade an intact marriage. (HOWEVER, a pregnant single woman can bring suit
against the married man)

♦ If paternity is questioned when the parties divorce, the wife cannot claim that the husband is
not the father of the child if the husband is stating that he is the father of the child

♦ The wife cannot deny the legal father rights to the child by denying that the child belongs to him
when the child was born during the marriage.

♦ Only the legal father has the right to assert presumption of legitimacy or he can opt out of being
the father of the child by requesting a paternity test (i.e. father can request a blood test be
conducted to determine paternity and whether to adjudicate the child has his)

♦ The legal father must raise the question of paternity during the course of the divorce proceeding
(i.e. before the final judgment is entered)

♦ If he fails to raise the question prior to the final judgment, he waives his right to question the
paternity (res judicata)

♦ Once the parties file for divorce, the putative father can file a petition for paternity.
♦ The legal father has the ability to defend the petition if both the putative and legal fathers
assert a claim of paternity.

♦ The court must determine what is in the best interest of the child;
♦ Privette v. DHRS- The court cannot adjudicate another man as the father of a child
without
o providing notice to the legal and putative fathers
o appointing a guardian ad litem to determine and recommend what is in the child’s
best interest regarding the paternity (i.e. which man should be adjudicated the
child’s father)
o The putative father was ordered to submit to the blood test but this might show
that she is illegitimate so the court then has to figure out if here not being
legitimate would be detrimental to the child. This is why they appoint a guardian
ad litem.

♦ Once a man is adjudicated the father of the child, he is responsible for providing child support
♦ If the parents are unmarried, the mother, the father, or the child can file a paternity suit
(§742.011).

♦ The standard of proof in paternity cases is clear and convincing evidence (§742.031(1))
28
 ♦ If a judgment of paternity contains no explicit award of custody, custody of the child is
presumed to be with the mother. The court will look at the order to see if visitation/custody was
litigated)

♦ Someone other than the mother, father or child can also bring a suit for paternity w/o
adjudicating visitation or custody rights. When a mother is receiving state benefits through DOR,
then the State (Dept of Rev.) can bring an action to establish paternity

♦ If the Department of Revenue seeks an order of paternity which only provides provisions for
child support, not child custody, custody of the child is presumed to be with the mother

♦ many times the Department of Revenue files a case against an alleged father to establish
paternity and recoup the money from the father that it provided to the mother through Aid to
Dependent Families

♦ If the Department of Revenue seeks an order of paternity, it cannot litigate visitation

♦ However, a parent can seek a modification of the order to seek visitation/custody
♦ In Fla. single fathers have a legal right to support a child prior to birth. The statute states that
putative fathers (biological fathers) who willfully fail to support mother during the pregnancy can
be held for pre-birth abandonment

♦ Further, when a woman brings a claim to establish paternity, retroactive child’s support may be
awarded up to two(2) years in an initial filing.

♦ If it’s a modification, then u cannot retroactively file for child support.

Defense of fraud
♦ There is no such thing as “wrongful birth”
♦ There is no defense which states that a father is not responsible to support his child if paternity
is established because the father was defrauded by the mother or the mother made
misrepresentative statements (i.e. “I cannot get pregnant”; “I am on birth control”)

♦ If the parents engage in consensual sex and the paternity of the child is established, the father is
responsible for providing support to the child

♦ In Fla. law also says that if you have sex with another you are put on notice that you have a
child-so you are singularly responsible for protecting your own right.

♦ If the mother and father of a child born out of wedlock subsequently marries, the child is
deemed born within wedlock (§742.091)

Procedure for establishing paternity

♦ To establish paternity, a biological father can file an affidavit of acknowledgement of paternity
that will provide protection for the child not to be adjudicated as belonging to another man
(§742.10)
OR
Forcefully determined by an adjudicatory hearing.

♦ In Fla. Venue, is in the circuit court where Plaintiff resides or where Defendant resides
♦ A notarized acknowledgement raises a presumption of paternity
♦ If the court finds that the alleged father is the father of the child then the court shall order the
father to pay child support, attorney’s fees and even expenses associated with the birth and
bringing the lawsuit.

29
♦ There is a SOL on paternity suits.
♦ However, if it is too short, it is unconstitutional.
♦ For example, in Clark, the Court held that a statute providing a paternity action must be brought 6
years after birth was unconstitutional, as it did not give the child a true opportunity to assert its rights.

♦ Fla. law requires that the SOL is 4 years after the kid turns 18.

15. DEPENDENCY Proceedings relating to children (Chapter 39)

♦ Parens Patriae- States have an interest in protecting children so they can interfere if decision
will harm child.
♦ The standard is a compelling interest
♦ State’s Justification for Intervention - a state has the authority to intervene when there is
a. actual harm: abuse, abandonment or neglect OR
b. threat of potential harm: imminent danger or injury as a result of abuse,
abandonment or neglect
♦ actual harm does not have to be inflicted on the child for the state to intervene; only the threat of
potential harm is sufficient for intervention
♦ however, there must be a strong argument for justifying state intervention when there is potential
harm to a child

♦ A state has the responsibility to protect the general welfare of a child

♦ A state should be allowed to prevent the harm instead of waiting until the actual harm occurs
(protective action)

♦ children is a protected class which provides a state greater authority to regulate a child then the
activities of an adult

♦ when the state intervenes, it should use the least restrictive means when intervening between a
parent and child

♦ removal of a child should be the last resort to provide a child protection from actual or potential
harm

♦ the purpose of this chapter is to remediate and rehabilitate parental defects

Steps to Adjudicate a Child Dependent

1. initial state intervention: in order for a state to intervene and remove a child,
the state must have probable cause that a child is in actual or potential harm of
abuse, abandonment or neglect

2. shelter hearing: once the child is removed, a shelter hearing must occur within
24 hours to determine whether probable cause exists for the removal of the child
(§39.402)

3. adjudication of dependency: a petition for dependency is filed to adjudicate the

child dependent (§39.501)

a. the petition must be filed within 21 days of the shelter hearing by the
Office of the Attorney General or any other person with knowledge of
the facts that a child is in actual or potential harm of abuse,
abandonment or neglect

Anyone can file a petition for dependency

30
 It is not required that the petitioner have first hand knowledge of the facts
alleged in the petition

b. when a petition is filed, the parent or legal guardian is not required to file
an answer to the petition (§39.505)

4. arraignment hearing: if a petition for dependency is filed, an arraignment

hearing must be held for the court to read the allegations being made within the
petition against the parent or legal guardian of the child (§39.506)

The parent or legal guardian of the child can

a. deny,
b. admit or
c. consent to the allegations

If the parent or legal guardian admits or consents to the allegations, the child will
be adjudicated dependent and a disposition hearing must be held within 15 days
after the arraignment hearing (right to disposition)

if a parent or legal guardian is consenting to the allegations he or she is not

admitting to the allegations but is consenting to the child being adjudicated
dependent (court cannot make finding of fact)

if the parent or legal guardian denies the charges, the court must hold an
adjudicatory hearing within 30 days after the arraignment hearing (set for trial)

If the parent or legal guardian fails to appear, this constitutes a consent to the
allegations and the adjudication of the child dependent

5. adjudicatory hearing: if the parents deny the allegations set forth in the petition
for dependency, a hearing on the allegations is held (§39.507)

The petitioner has the burden of proving by a

preponderance of the evidence that the allegations
are true
i. if the petitioner fails to meet this burden, the case will be
dismissed

ii. if the petitioner meets this burden, the child will be adjudicated
dependent and custody of the child will be awarded to the state

The parent or legal guardian has the ability to appeal the court’s decision to
adjudicate the child dependent (§39.510)

If the state reaches its burden, the child is adjudicated dependent

6. disposition/order of disposition: a written case plan for the parent or legal

guardian to follow, as well as a predisposition study must be filed with the court
and served upon the parents (§39.521)

The court must approve the case plan submitted to the court (§§39.601, 39.603)

If the court fails to approve the case plan at the disposition hearing, another case
plan must be submitted and a hearing must be scheduled within 30 days to
review and approve the newly submitted case plan

The parent or legal guardian must adhere to the provision as set forth in the case
plan to remedy the parental defects
31
 A judicial review will be held by the court to review whether or not the parent or
legal guardian is following the provisions of the case plan

Within the order of disposition, the court can order

i. the placement or custody of the child (i.e. return to the parent, if
not the parent, to a relative or to a foster home)

If the child is placed with a relative who are within the 5th degree
by blood or marriage to the parent or stepparent of the child, the
Department of Children and Family Services can establish the
relative to receive Relative Caregiver Funds (§39.5085)

This shows how far the state is willing to go to keep children out
of foster care

ii. evaluations, counseling, treatment (i.e. for drugs, alcohol,

domestic violence)

iii. the persons or entities responsible for supervising or monitoring

the services of the child and parent (i.e. ChildNet)

iv. continuation or discharge of the guardian ad litem

d. There are also case plan requirements. The case plan must
i. be developed with the parent of the child
ii. written simply and clearly
iii. include the minimum number of face-to-face meetings to be held
each month between the parents and the caseworker to review
progress of the plan
iv. subject to modification
v. signed by all parties
vi. describe of the tasks to be completed
vii. describe the permanency goal of the child, including the type of
placement

e. If the child is removed from the home, the case plan must provide
whether reunification of the child with his parent or legal guardian or
permanency is a goal within the case plan. Case Plan Development
39.6011. What everybody’s responsibilities will be in relation to the child.
Case Plans have to be signed

7. judicial review 39.701: at the conclusion of the disposition hearing, the court
must schedule the initial judicial review within 90 days to review the status of the
child and parent or legal guardian adhering to the tasks within the case plan
(§39.701(3)(a))
a. judicial review hearings must be held at least within every 6
months
8. TPR – Adoption or Permanency. Most restrictive thing the gov’t can do.
Standard of proof – clear and convincing.
Death penalty of parental rights.
If the child has killed another child, or there is abandonement you can file
for TPR. There does not have to be dependency to file for TPR. Anyone can file for TPR.

Abuse, Neglect, Abandonment

For child abuse and neglect this is not a best interest standard but rather when the states
interest is compelling.
32
 ♦ abuse: any willful act or threatened act that results in any physical, mental, or sexual injury or
harm that causes or is likely to cause the child’s physical, mental or emotional health to be
significantly impaired

o parental privilege to discipline – the use of physical discipline can be used for the
purpose of preventing or punishment of misconduct, where “the force is not designed to
cause or known to create a substantial risk of causing death, serious bodily injury,
disfigurement, extreme pain, or mental distress”

♦ Parents may used corporal punishment to discipline their children as long as it is not cruel and
unusual punishment

♦ temporary pain or discomfort is justificiable as long as the force does not cause permanent or
long-lasting harm

♦ Corporal punishment- 1)The force is truly used to exercise domestic authority b y punishing 2)
When the amount of force is moderate and reasonable.

o difficulty of prosecuting sexual abuse – the nature of the injuries (sexual abuse rarely
reveals physical injuries); injuries usually are inflicted by a friend or family member;
injuries occur within the privacy of one’s home; fear of the child. The abuse of others can
serve towards the dependency of your own children.

♦ neglect: when a child is deprived of food, clothing, shelter or medical treatment or a child is
allowed to live in an environment when deprivation causes the child’s physical, mental, or
emotional health to be significantly impaired or be in danger of being significantly repaired. If the
parent cannot afford to take care of her children then they cannot be taken away, they have to
institute a program.

a. refusal of medical treatment – refusal of medical treatment for child by

his parent or legal guardian because of religious believes is not
considered neglect in Florida. This is not absolute so the state can
interfere under parens patriae if the child is dying.

b. emotional abuse and neglect – emotional abuse and neglect is the

least reported form of abuse or neglect
i. however, more and more states are recognizing that emotional
abuse and neglect is child abuse
ii. a court must look at the facts of the case (facts specific;
objective) to determine if the emotional abuse or neglect reached
the threshold of child abuse
iii. although emotional abuse and neglect, over time, can manifest
into physical harm, many states fail to justify and allow state
intervention
iii. in some reported cases, a parent has been charged with failed
to act by stopping or removing the child from the abusive home

♦ abandonment: when the parent or legal guardian of a child who is able to support and provide
for the child, makes no provision for the child’s s support and makes no effort to communication
with the child

Reports of Child Abuse, Neglect, or Abandonment

♦ any person who knows or has reasonable cause to suspect that a child is abused, abandoned or
neglected by a parent or legal guardian must report such knowledge or suspicion to the abuse
hotline
♦ Reasonable suspicion is the standard

♦ everyone has an obligation to make a report

33
 ♦ when a call is made, a personnel at the central abuse hotline will determine if the report meets
the statutory requirements to constitute abuse, neglect or abandonment

♦ the caller can remain anonymous

♦ the reports are kept confidential (§39.202(1)) except to specific authorities, which include: child
or adult protective investigations; protective services, services for victims or domestic violence
(§39.202(2)(a)(1-5))

♦ If a report is made by any person, official or institution in good faith, the person is immune from
civil or criminal liability (§39.203)

♦ if, however, the report is not made in good faith, the reporter could be held criminally
(§39.205(6)) and/or civilly liable (§39.206(1))

♦ people in the following occupations are required to make a report and provide their names to the
hotline (§39.201) or could be guilty of a crime if willfully and knowingly fail to make a report
(§39.205(1-5)):
a. physicians, hospital personnel
b. health and mental health professionals
c. school teacher or other school official or personnel
d. social worker, day care worker, or other professional child care, foster
care, residential or institutional worker
e. law enforcement officer
f. judge

♦ Even when a child is sheltered and later adjudicated dependent, very few parents are
prosecuted criminally for abuse, abandonment or neglect because of the lack of evidence

♦ To prosecute a parent for a criminal act against a child, the state has a higher burden of proof
i. shelter = probable cause
ii. adjudicate dependent = preponderance of the
evidence
iii. criminal = beyond a reasonable doubt

Notes re: Sexual Abuse of a Child

1. experts, including therapists, are not allowed to testify whether or not the alleged
victim is telling the truth about the abuse; this is a decision for the fact-finder
2. a parent or legal guardian cannot refuse to produce a child that has been alleged
to have been abused
3. in Florida, any child who is under 16 and it is alleged that he has been abused
can have his hearsay statements regarding the sexual abuse entered into
evidence (“tender years hearsay exception”)

Separation of Powers: Court, State and Parent

1. when a child is adjudicated dependent, the Department of Children and Families
is awarded legal custody of the child (loco parentsis; right to make decisions)

2. the court has no power to select foster placement, what therapists the child or
parents are to see, usage of specific service providers

The court can make recommendations or tailor the case plan so that only a
particular facility can be utilized to adhere to a specific provision of the case plan

However, once the Department is awarded legal custody of the child, the

34
 Department has the legal authority to decide which services are to be utilized
and by whom

The Department also has the sole authority to decide foster placement and
select the adoptive parents of a child in its custody

3. The state also has the authority to decide whether it is in the child’s best interest
to visit certain relatives or friends of the family
a. when a child is adjudicated dependent, the parent loses their right to
privacy and no longer as the discretion or the right to determine what is
in the best interest of the child
b. the state gains the obligation to provide and serve the best interest of the
child

4. The state is also liable to the child in its custody for negligence if it fails to
intervene when a child is endanger or provide a safe place for the child from the
endangerment when placed back with parents, within relative care or a foster
home

a. if the state has legal custody  special relationship is created =

liable
i. state is liable for the selection of placement of the child and
monitoring the foster care
ii. if the child is injured while the state has custody, the state is
liable for negligence because of its failure to provide a safe
environment for the child

b. if the state does not have legal custody --- no special

relationship created = not liable
i. if the state does not intervene within a situation, and the child is
not awarded to the custody of the state, the state is not liable for
acts that occur to the child

Mental Health of a Child

A. Due Process: Right to a Hearing
1. if the parents of a child voluntarily decide to hospitalize their child, a due process
hearing is not required before the child can be hospitalized
2. if the parents of a child do not voluntarily decide to hospitalize their child, a due
process hearing is required before the child can be hospitalized
a. Baker’s Act = involuntary hospitalization for mental health
b. Myer’s Act = involuntary hospitalization for alcohol

Relative Care Takers Chapter 751)

A. Purpose of Act
1. parents often place their children within the care of their family members who the
parents believe are better able to care for their children
a. because of the care being provided by their extended family member,
the children are not considered dependent but
b. the family member is provided temporary custody without going through
the state

Order Granting Temporary Custody

1. when there is consent (voluntary) between the parents and the family member,
the court can grant an order of temporary custody to the family member without
the child being adjudicated dependent when it is in the child’s best interest
a. there is no state intervention or services provided to the parents and/or
35
 the child (unlike Chapter 39)

2. when one parents objects (involuntary) to the temporary custody to a family

member, the court can grant temporary custody if by clear and convincing
evidence the child’s parent or parents are unfit
a. in determining whether a child is unfit, the court must find that the parent
had abused, abandoned or neglected the child (as defined in Chapter
39) but the rights of the parents are not terminated
b. the petitioner has a higher burden to prove by clear and convincing
evidence that the parent or parents are unfit

i. the state has an obligation to protect the child by preventing

families from interfering with other family members and seeking
the court to improperly remove the child
ii. relatives have rights to a child but parents have a greater right

Comparing Chapter 751 v. Chapter 39

1. The family member with temporary custody as ordered in Chapter 751 has the
option to file a petition for dependency under Chapter 39

The petitioner must prove the child is dependent because of abuse,

abandonment, neglected by a preponderance of the evidence

2. Unlike filing a petition for temporary custody under Chapter 751, the child
becomes a part of the state when petition for dependency is filed under Chapter
39

Chapter 751: Temporary Custody Chapter 39: Dependency

Petition for Temporary Custody
No state intervention
Child is NOT a part of the state
No services provided to the parents and/or child
Parents can which family member to place their
child with temporarily
If a parent objects, the court can grant temporary
custody if it can be proven by clear and
convincing evidence the child’s parent or
parents are unfit because of abuse, neglect or
abandonment
No case plan ordered
Petition for Dependency
State intervention
Child IS a part of the state
Services provided to the parents and/or child to
remedy the parental defects
Parents can request a child be placed with a
specific family member, but there is no guarantee
A court can adjudicate a child dependent if it is
proven by a preponderance of the evidence that
the child was abused, abandoned or neglected
Parents must adhere to the case plan

Grandparent Visitation Rights (Chapter 39)

♦ Grandparent’s Rights - when a child is adjudicated dependent and taken from the custody of the
parent, the court has the authority to grant grandparents visitation with the child if it is in the best
interest of the child

♦ a grandparent visitation can take place within the home of the grandparent unless there is a
compelling reason to the contrary

♦ a grandparent is not restricted from showing affection to the child, such as giving hugs and
kisses

Petition for Visitation Filed by Grandparent

♦ the court can grant a grandparent visitation who files a petition for visitation when

36
 a. the marriage of the parents of the child has been dissolved; or
b. the marriage is no longer intact
c. the privacy within the context of marriage no longer exists
d. a parent of the child has deserted the child; or
e. the child was born out of wedlock

Foster Parents
A. Contractual Relationship
1. when a child is adjudicated dependent, the child may be placed within a foster
care by the Department of Children and Families
2. the foster parents have physical custody of the child, while the Department has
legal custody
3. the foster parents have a contractual relationship with the Department and the
child
a. Department = principal
b. foster parent = agent
4. foster parents can orally agree to allow the biological parents communication or
contact with the child
5. when a child is removed from foster care (i.e. adoption), a pre or post hearing is
not required

failure to hold a hearing before the removal of the child is not in violation of the
foster parents’ due process rights

foster parents have no inherent constitutional rights, including due process

foster parents are only contract providers to the state

6. However, if a foster parents objects to the removal of the child

a. foster parents can request to be heard by the court before or after the
removal of the child from the foster home under the “Party Participant
Rule”
b. but the goal of Chapter 39 is to remedy parental defects and reunify the
parent and the child

7. in deciding permanent placement of the child and termination of parental rights of

the biological parents, in Florida, the court cannot compare the parental
attributes of the biological parents to those of a foster parent

Termination of Parental Rights (TPR)

1. If a parent’s defects are unable to be rehabilitated, the state, the guardian ad
litem or any other person who has knowledge of the alleged facts and believed
that they are true, can file a Petition for Termination of Parental Rights

2. In order for the court to grant the petition, the petitioner must prove by the
clear and convincing evidence that the parent is unable to meet or provide
the needs of the child and it is in the best interest of the child to terminate
parental rights

The state has an affirmative obligation to remediate and rehabilitate parental

defects before seeking to terminate parental rights

The state must make reasonable efforts to provide parents with the services that
will remediate and rehabilitate their parental defects, such as housing assistance,
day care, medical and legal services, substance abuse treatment, domestic
violence treatment and counseling

The parent, on the other hand, must make reasonable efforts towards
substantially complying and completing the required tasks as provided in the
37
 case plan

3. Termination of parental rights is not conditional; when the rights are terminated
by the court, the biological parent looses all right to the child

Grounds for Termination of Parental Rights 39.806

1. written surrender and consent: when the parent or parents have voluntarily
executed a written surrender of the child and consented to the entry of an order
giving custody of the child to the department for subsequent adoption and the
department is willing to accept custody of the child

a. the surrender and consent may be withdrawn by the parent or parents

after acceptance by the department, but only after a finding by the court
that the surrender and consent were given because of fraud or duress
A parent cannot sign a conditional surrender – I’ll give you my child if you.. blah
blah blah

2. abandonment: the parent or parents abandon the child or when the identity or
location of the parent is unknown and cannot be ascertained by diligent search
within 60 days

3. life, safety and well being of the child is threatened: when the parent or
parents engage in conduct toward the child or toward other children that
demonstrates that the continuing involvement of the parent or parents with the
child threatens the life, safety, well-being, or physical, mental or emotional health
of the child despite the services given or provide to the parent or parents within
the case plan
- Cts cannot enforce religious orders by parents – separation of church and
state.
- But if there is a religious ceremony requiring a child to walk across hot coal –
the court is going to get involved because it venturing into well being.

4. incarceration: when the parent of a child is incarcerated in a state of federal

correctional institution and the incarcerated parent has been determine by the
court to be a violate career criminal, a habitual violent felony offender or a sexual
predator
5. parents do not comply with case plan: when a child has been adjudicated
dependent, a case plan must be filed with the court; if the child continues to be
abused, neglected or abandoned by the parent or the parents fail to substantially
comply with the case plan for a period of 12 months
a. approximately 95% of TPR cases are filed because the parents do not
substantially comply with their case plan
b. a child is not automatically returned to their parents if the parents
substantially comply with the case plan
i. the court has the obligation to determine whether the return of
the child to the parents are in the child’s best interest

6. egregious conduct: when the parent or parents engage in egregious conduct or

had the opportunity and capability to prevent and knowingly failed to prevent
egregious conduct that threatened the life, safety or physical, mental or
emotional health of the child
a. egregious conduct means conduct which causes abuse, abandonment,
neglect or any other conduct by the parent that is deplorable
b. at this stage, it is almost impossible to remediate or rehabilitate the
parents

Petition for Termination of Parental Rights

38
 ♦ a petition for termination of parental rights must contact facts that support one of the six grounds
for termination of parental rights

♦ that the parents of the child were informed of their right to counsel and that a disposition order
was entered adjudicating the child dependent was entered

♦ However, when a petition for termination of parental rights is filed, a separate petition for
dependency is not required to be filed

♦ the state does not have to offer the parents a case plan with a goal of reunification, but may
offer a case plan with a goal of termination of parental rights to provide services until the rights
are terminated

♦ the best interest of the child would be served by granting the petition. 39.810

39.811 7(a)(b) can a parent who has had their rights terminated have visitation? Yes

Identity or Location of a Parent is Unknown

1. if the identity or location of a parent is unknown and a petition for termination of
parental rights has been filed, the petitioner must conduct a diligent search to
identify or locate the parent unless the court finds that the best interest of the
child requires proceeding without actual notice to the person

Continuing Jurisdiction
1. when a parent’s rights are terminated, the child is permanently committed to the
Department of Children and Families and is free to be adopted

2. the court that terminates a parent’s parental rights must retain exclusive
jurisdiction over the child in all matters pertaining to the child’s adoption pursuant
to Chapter 63

However, the court has no legal authority to select the adoptive parents, the sole
discretion is left to the Department of Children and Families

If a parent executes a surrender of termination of parental rights and a court

accepts it, the parents have no right to be a part of the adoption process or to
select the adoptive parents

As a matter of law, there is no conditional surrender or an invalid surrender

3. Once the adoptive parents are chosen, the court’s only function is to sign the
order completing the adoption unless it is proven by clear and convincing
evidence that the adoption is not in the child’s best interest

16. Insemination and Surrogacy

♦ In Fla child may be conceived through:
♦ Artificial Insemination – this is where a wife (with the consent of her husband) is
artificially inseminated by a doctor with the sperm provided by a 3rd party donor.
♦ The presumption regarding the status of this child is that if the child is conceived or born
during the marriage, then there is a irrebuttably presumption that the child is the child of
the husband and wife.
♦ In other words, the husband is presumed to be the father of the child.
♦ NOTE- that both husband and wife must consent in writing to the artificial insemination.
♦ NOTE also that if the husband consented then he is also estopped from denying his
support obligation to the child.

♦ Donated eggs or preembryos – this is where the wife is implanted with a donated egg or
39
 preembryo
♦ The presumption here is that if the child is born in wedlock, then there is a irrebuttably
presumption that the child is the child of the wife and her husband, provided that they
both consented in writing to the use of the donated eggs or preembroys.

♦ The donor of these eggs, sperm or preembryos has no rights here bc they relinquish all maternal
or paternal rights and obligations to the resulting child.
♦ The donor is only entitled to reasonable compensation that is directly related to the donation of
the eggs, sperm or pre-embryo.

♦ Gestational Surrogacy –this is where a couples eggs or sperm or both are mixed together
and the resulting embryo is implanted in another woman’s body.
♦ The person carrying the child really has no rights. In essence you are basically renting
someone womb.
♦ In Fla. for one to engage in gestational surrogacy the following requirements must be
met:-
o 1. the commissioning couple (prospective parents) MUST enter into a binding and
enforceable contract with the gestational surrogate mom before the procedure.
o 2. the gestational surrogate must be 18 years or older
o 3. the commissioning couple must be legally married and both 18 years or older.
o 4. must be medically unable to have a child

♦ The Surrogacy Contract

o A surrogacy contract can only be entered into only when:-
 i. it is medically certain that the commissioning mother (wife) cannot physically
do the gestation to term
 ii. The gestation will cause risk to health of mother (wife) or the fetus

o The contract must include the following provisions:-

 i. the surrogate shall be the sole source of consent regarding clinical intervention
and management of the pregnancy

 ii. The surrogate shall submit to reasonable medical evaluation and treatment
and to adhere to reasonable medical instructions about prenatal care.

 iii. The surrogate shall relinquish any parental rights upon the child’s birth and to
shall proceed with judicial proceedings for expedited affirmation of parental
status - within 3 days after the birth of the child the couple or their legal rep
shall appear at hearing on petition for expedited affirmation of parental status. If
the court finds that the gestational surrogacy contract was enforceable and at
least one member of the commissioning couple is the genetic parent of the child,
then the court shall enter a order stating that the couple is the legal parents of
the child.

 iv. The commissioning couple shall accept custody of and assume full parental
rights and responsibility for child immediately upon child’s birth regardless of any
impairment of the child.

 v. the surrogate shall assume parental rights and responsibility of child if it is

determine that neither the H or W (the commissioning couple) is the genetic
parent of the child.

o As part of the contract the commissioning couple shall agree to pay ONLY
reasonable living, legal, medical, psychological and psychiatric expense of the
surrogate.
o These expense must be directly related to the prenatal, intrapartal and postpartal
periods.
40
 o
♦ The statute also provides that the couple and the doctor shall enter into a written
agreement as to the disposition of the couples eggs, sperm, pre-embryo’s in the event of
divorce, death, or other unforeseen circumstance
♦ If there is no agreement then:-
o the eggs/sperm remain w/party that provided the eggs/sperm
o decision-making resides jointly w/the couple
o if one of the couple dies the eggs/sperm etc, shall remain under control of survivor
o child conceived from the eggs/sperm of a person who died b/4 the transfer into a body
shall not be eligible to claim against decedent’ estate unless child is in the will

17. Domestic Violence(Chp 741.28)

♦ Fla. DV is defined as any
o Assault, aggravated assault
o Battery, aggravated battery
o Sexual assault, sexual battery
o Stalking, aggravated stalking
o Kidnapping
o False imprisonment or
o Any criminal offense resulting in the physical injury or death
Of one family/household member by another family/household member
♦ NOTE- you do not have to have physical injury in order for act to constitute DV. What is
required is reasonable apprehension of harm or reasonable apprehension of physical
contact

♦ Test for DV is subjective and objective

♦ Subjective – you must believe that you are going to be the object of imminent harm
♦ Objective- fear must be reasonable.
♦ In sum the persons who have standing are a family/household member who is either a
victim of DV or who has reasonable cause to believe that he/she is in imminent danger
of becoming a victim of DV

♦ NOTE also- that DV here is between family/household members

♦ The Statute only protects people who are living together or who have a child in common
♦ Family/household members are:-
1. spouses, former spouses
2. Persons related by blood or marriage
3. Persons who are presently residing together as if a family
4. Persons who have resided together in the past as if a family
5. Persons who are parents of a child in common regardless of whether
they have been married.
♦ With the exception of persons in category 5, all the others must currently reside or have
in the past resided together in a single dwelling unit.

♦ When law enforcement is called into a home for DV issues, if the officer determines
upon PC that Dv has been committed then officer has discretion because he may or
may not arrest the person suspected of DV.
♦ NOTE, however that officer doesn’t need the victim’s consent to arrest, nor should the
officer consider the relationship of the parties.
♦ The statute says that the officer must determine who was the PRIMARY AGGRESSOR
and the Officer should arrest only the primary aggressor.
♦ If they can’t figure out who the party was they may arrest either.

Relief for DV
♦ What relief can you get for domestic violence? You can get everything except Divorce
and ED
41
 ♦ Thus U can get relief under Chp 61 BUT NOT Divorce and ED
♦ PRIMARILY U get an Injunction for Protection against DV.
♦ The Injunction is effective for up to 15 days
♦ NOTE- there is no such thing as a restraining order under DV statute-what you get is
injunctive relief

♦ The relief for DV are substantial. The court can:-

o remove person from joint residence;
o award victim temporary exclusive use of the residence
o grant temporary custody of a minor child to the victim/petitioner
o award temporary visitation rights
o establish temporary child support
o order perpetrator to participate in treatment, intervention or counseling,
o refer the victim/petitioner to certified DV centers,
o order such relief as the court deems fits for the protection of the victim, including
directives to law enforcement agencies.

Procedure for DV
♦ The procedure is that the petitioner files a petition for injunction for protection against
domestic violence
♦ The judge reviews the Affidavit and grants a temporary Order pending a full hearing.
♦ This is an exparte order bc it is a emergency proceeding
♦ The sheriff will then come to your home and kick out the perpetrator out of the home.

♦ If there is a violation and the person moves back into the house, he/she will be arrested.
♦ The petitioner (person who obtain the order) cannot unilaterally waive it and allow the
person back in. It is a court order.

♦ If the sheriff cannot find the perpetrator to remove him from the home then that is a
problem bc due process requires that the person be served personally.
♦ In other words the person must be served (personally) in order for the subsequent
hearing to take place- This is known as the evidentiary or extension hearing where court
will determine if the temporary exparte order should be permanent.
♦ At this hearing the perpetrator usually show up with an attorney bc his name and
address is on record and attorneys solicit these for clients.
♦ However, the victims info is removed from public record.

♦ NOTE a parent can petition the court for Injunction for Protection Order against DV for a
minor child or on behalf of a minor child.

♦ Injunctions for Protections against DV are entitled to full faith and credit.

♦ A violation of the DV statute may result in criminal or civil prosecutions.

♦ A person who has a DV protection Order against them cannot have a firearm in his
possession.

Repeat Violence:
♦ This is applicable to everyone else not included in the DV statute
♦ In other words it applies to persons who do not live together.
♦ The requirements for this cause of action are:-
o 1. there must be 2 incidents of violence or stalking
o 2. one of the incidents must have w/I 6 months of the filing of the petition.
o The violence or stalking must be directed at the petitioner or the petitioner’s immediate
family members.

42
♦ Violence means any of the acts define as DV.

♦ This Statute also deals with Dating violence.

♦ Dating Violence means violence b/t individuals who have or had a continuing and significant
relationship of a romantic or intimate nature
♦ The dating relationship must have existed w/in the past 6 months, and the parties must have had
sex, and a frequent relationship over a continuous basis

♦ The standing requirements are similar to DV- reasonable cause to believe that he/she is in
imminent danger of becoming a victim.
♦ Here adults can also petition on behalf of minor children but you need eye witness or direct
evidence.
♦ The remedies are Injunctive remedies and a violation of these orders also results in criminal or
civil prosecution.

43