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Family Law – Shared Parenting

SHARED PARENTING Part 2

by Shawn Hungate.

Shared parenting is the most positive method to restructure the family after a divorce or, in the case of unmarried couples, an establishment of paternity.  But, in cases where there is serious child abuse, ongoing and serious domestic violence, or other extreme situations, like one parent going to prison for a significant amount of time, the Court may order that shared parenting would be harmful to the children.  In those cases, the Court can order Sole Parental Responsibility.  These cases are very rare, and the Court is generally loathe to order it.  This kind of case creates a situation where one parent makes all the decisions regarding the child.

In divorce and paternity cases where the Court finds that both parents are unfit to care for the children, the Court may award custody to a third party.  In Domestic Relations Court (where divorces and paternity cases are heard), this is extremely rare, as before anything like that comes up, the Florida Department of Children and Families usually will get involved and a Juvenile Dependency case is filed.

Florida has a public policy to ensure that children have continuing and meaningful contact with both of their parents.  As the parents no longer reside together after a divorce, they have to come up with a time-sharing schedule.  This is now done through a Parenting Plan, which is required in all divorces or paternity cases.  It used to be the law that one parent was granted “custody”, or “primary residential responsibility”.  Those terms are no longer used in Florida.  Although one parent may be designated as the custodial parent for purposes of laws outside of the state, the closest term used now is the parent with the “majority of overnights”.  This is not to say that parent has “custody”, though.  Most divorces or paternity cases still grant both  parents equal rights in raising the children regardless of where the children spend most of their time.

The time sharing schedule can be as flexible or as structured as is needed by the Mother and Father, and, for that matter, the children.  This schedule can include an old-fashioned every other weekend, evenly divided holidays, and half the summer, type schedule; or an equal time sharing, or “rotating” schedule.  Although it is not necessarily the rule in all cases, “rotating” schedules have become much more common recently, as the Courts have begun to recognize Father’s rights to participate in the raising of their children more and more over the years.  In fact, no preference is given any more to the Mother simply because she is the Mother.

There are several factors spelled out in Florida Statutes Chapter 61 that guide the Court in determining the Parenting Plan and time sharing schedule for the children if the parties cannot reach a resolution on their own.  If possible, it is better for the parents to come up with their own Parenting Plan and time sharing schedule, as the Court can never know the particulars of any given case as well as the parents.

If you have any questions about Time Sharing or Parenting Plans, feel free to call me at 407-846-1529 (407-846-1-LAW) for a free initial consultation.  Shawn L. Hungate, Attorney at Law, 811 Patrick Street, Kissimmee, Florida, 34741.

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Family Law – Shared Parenting

SHARED PARENTING part 1

by Shawn Hungate.

Commonly referred to as custody, the concept of shared parenting comes up after a dissolution of marriage (divorce), or the establishment of paternity.  Shared parenting does not necessarily mean rotating custody, but is the term used to describe the relationship that is established between the parents and the children after a divorce or establishment of paternity.

Parents must protect their children from undue hurt and turmoil.  One of the most difficult things about a divorce is the effect it has on the children of the parties.  Parents need to remember that in a divorce, they are ending their marriage to the Husband or Wife, not ending the relationship with their children.  Parents will always remain Mother and Father to their children.

Divorce is a stressful and major crisis for both the adults and for the children.  The stress can result in both physical and emotional problems.  Different aged children can react differently to divorce.  This may range from irritability to severe behavioral changes like drug use.  Parents should look for signs of trouble and react to them early to help prevent potential serious problems in the future.  It is best if the parents can work out the parenting issues to help avoid, or at least minimize, the harm the children may suffer.  Sometimes avoiding a court fight and attempting an uncontested divorce can help in this.  However, if parent are unable to do so, the Court will have to decide parenting issues for them.

The idea of Shared Parenting is to provide a framework for effect co-parenting.  It is public policy in the State of Florida to promote the sharing of rights and responsibilities of raising their children.  Shared Parental Responsibility is a court ordered in just about every case.  It means that both parents retain full parental rights and full parental responsibilities over their children.  It means that the parents shall discuss with each other all major decisions affecting the children and their welfare.  It means that the decisions regarding the children shall be made jointly.  Shared Parenting is ordered to protect the children’s right t an ongoing relationship with both parents.

Each parent has certain duties when it comes to raising their children after a divorce or establishment of paternity.  When the children are with one parent, that parent shall make the day to day decisions regarding the children’s regular care, maintenance, and welfare.  The parents should consult with one another when larger issues come up like religious upbringing, discipline, financial issues, morality issues, major recreational activities, and non-emergency medical care.  In other words, while a parent doesn’t need to call the other parent to discuss what the children are going to have for dinner every night(unless there are medical issues), they should discuss and resolve where the children are going to summer camp, or whether they are going to enroll in the local soccer league.  Each parent should take an active role in providing sound environment for their children and attempt to resolve any differences as amicably as possible.  This also means that the parents should not only discuss these issues, but carry themselves in a way that promotes and fosters the best interest of the children.  If the children see a parent arguing, yelling, or acting inappropriately, they are likely to copy that behavior.

Sometimes parents after a divorce do not realize what should be pretty obvious, and that is sharing information about the children.  A parent should immediately notify the other parent about any serious illness or accident that affects the children.  Likewise, both parents have the right to access records and information pertaining to the minor children, including, but not necessarily limited to, medical, dental, optical, and school records.

Ultimately, both parents have a duty to promote a good relationship between the children and the other parent.  Under shared parenting, both must attempt to make sure that the children have free access and unhindered contact with the other parent.  If one parent desires to relocate, than the other parent must be notified and their right to ongoing contact and access with the other parent must be considered..  In fact, if the parent the children spend the majority of time with (what used to be known as the “custodial parent”, the “parent with custody”, or the “parent with primary residential responsibility), than that parent has to follow the law established in Florida Statute 61.13001, “Parental Relocation with a Child”.  The natural development of the children’s love and respect for the other parent must not be interfered with by the other parent.

I have handled many family law cases, including divorces, paternity cases, modifications, and enforcements since 1998.  If you have any questions regarding your situation, please feel free to contact me at 407-846-1529.  Shawn L. Hungate, Attorney at Law, 811 Patrick Street, Kissimmee, Florida, 34741.

Contested Divorce Basics

Contested Divorce Basics

by Shawn Hungate.

When someone hears the word “divorce”, a contested divorce, with all its procedures, is what often comes to mind.  This process begins with a Petition for Dissolution of Marriage filed with the clerk of courts.  This Petition can be filed by either the Husband or the Wife (or either “party”).  That party becomes the Petitioner.  This Petition is then served on the other party, who is called the Respondent.  The Respondent typically has 20 days to answer the Petition.

The Petition contains allegations about the marriage.  It must allege that the marriage is irretrievably broken.  It may contain other allegations including, but not necessarily, a request to divide assets and debts, a claim for time sharing with children, a claim for child support, and claims for alimony, among other things.

The Respondent then must file an Answer or risk being defaulted, allowing the Petitioner to go forth to the Judge for a final hearing.  The Respondent may also file a Counter-Petition.  The Counter-Petition would contain allegations just like a Petition would and must be answered by the other party.

Often times, financial disclosure is provided with, or soon after, service of the initial Petition for Dissolution of Marriage.  If this is not done, financial disclosure (or “Mandatory Disclosure”) is required within 45 days of the service of the initial petition.  The amount of disclosure can vary depending on the parties’ incomes and expenses.  This financial disclosure is often required prior to temporary relief hearings.  In Osceola County, Mediation is usually also required before temporary relief matters are heard.  In all cases, at minimum, a Financial Affidavit is required.

Mediation is a major part of a contested divorce and is required in most cases (cases without a default entered) to give the parties an opportunity to settle their case prior to going to a final hearing.  This can help the parties avoid a protracted process preparing for a trial.  The purpose of mediation is not to save a broken marriage, but to give the husband and wife a chance to dictate there own terms of the divorce without the Judge deciding their case for them.  The parties should realize that compromise is important in a mediation if you want to successfully settle their case.  There can be one or several mediations in a single divorce proceeding.  A mediation can settle some issues, all issues, or no issues.  Mediations are attended by the Husband, the Wife, their attorneys, and a mediator.  Third parties are typically not allowed to attend mediations.

If the case is not settled at mediation, the parties can still attempt to settle out of court, or have their attorneys try to work toward a settlement.  If no settlement is reached, cases often proceed with depositions, interrogatories, and further discovery.  Eventually, the parties would go to a final hearing (a Trial) and have the Judge decide the issues that were not settled on at mediation.  At this Trial, each side will have an opportunity to present their side and make their requests to the Judge.

Anyone going through a divorce, especially a contested divorce, should realize that it is unrealistic to expect to be “happy” with their divorce.  A divorce can be emotionally and financially devastating.  The parties now living apart and, often times, alone can be difficult.  In cases with children, the time spent away from them can be very trying.  Finally, the simple fact that there are two households to support instead of one is enough to cause a serious financial strain on the parties.

It is always a good idea to consult an attorney before you proceed with a divorce and I would be happy to talk to you about your own unique circumstances.

Shawn L Hungate Attorney at Law, 811 Patrick Street, Kissimmee, FL 34741  407-846-1529

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