STATUTORY AND RULE CHANGES IN FAMILY LAW SEMINAR
Tallahassee Bar Association and Legal Aid Foundation
September 12, 2008
Florida Bar Course No. 7532-8
BILLS THAT FAILED: ONES TO WORRY ABOUT OR HOPE FOR
Suzanne Brownless
I. Bills that were filed but did not pass in the 2007 legislative session
A. Termination of Parental Rights Related to Sexual Battery - CS/SB 638 (CS/H271);
Disposition: Referred to Children, Families and Elder Affairs, Criminal Justice, Judiciary,
and Criminal and Civil Justice Appropriations. Passed Children, Families and
Elder Affairs, Criminal Justice and died in Judiciary.
This bill substantially amended 39.806, F.S. by allowing the termination of parental rights if the
parent pled guilty or nolo contendere to, or was convicted of, a sexual battery which resulted in the
victim giving birth to a child. Reasonable efforts to preserve and reunify families were not required in
this instance. Further, 39.811, F.S., was amended to allow termination of one parent's rights without
the termination of the other parent's rights. Finally, 794.057, F.S, was amended to allow the criminal
court to order the payment of restitution to the victim based upon 61.30, F.S., child support guidelines
the amount of which could not be reduced based upon the offender's inability to pay.
At the present time a "substantial risk of significant harm to the child" must be proven by clear
and convincing evidence in order to permanently and involuntarily terminate parental rights. Pagett v.
Department of Health and Rehabilitative Services, 577 So.2d 565, 571 (Fla. 1991). In prospective abuse
cases, a connection between past acts of abuse and the prospect that abuse will occur again must be
proven. The issue in prospective abuse cases is whether future behavior adversely affecting the child can
be "clearly and certainly predicted." T.M. v. Department of Children and Families, 971 So.2d 274, 278
(Fla. 4th DCA 2008)(quoting E.R. v. Department of Children and Family Services, 835 So.2d 1189, 1195
(Fla. 1st DCA 2002)).
There is no Florida case law directly on point with regard to whether a court may terminate
parental rights of the father of a child conceived and born as the result of an act of sexual battery.
However, Department of Revenue v. Miller, 688 So.2d 1024, 1025 (Fla. 5th DCA 1997), holds that the
rights of a child to support cannot be foreclosed because the biological father was the victim of sexual
battery. Further, G.F.C. v. S.G., 686 So.2d 1382, 1386 (Fla. 5th DCA 1997) holds that a man must allege
that a developed relationship exists between him and the child, rather than merely a biological link, in
order for a man to institute an action for paternity. The court stated that "[o]therwise, in an extreme
example, a man could be permitted to assert a cause of action for paternity of a child conceived as a
result of a sexual battery."
B. Alimony Glitch Bill - SB 1416 (CS/H453)
Disposition: Referred to Children, Families and Elder Affairs, Judiciary. Passed Children,
Families and Elder Affairs and died in Judiciary.
This bill modified 61.08(2), F.S., to allow courts to take into account a "supportive
relationship" in establishing initial alimony awards. Section 61.14(1)(b), F.S, already allows the court to
terminate or modify alimony based upon proof by a preponderance of the evidence that a supportive
relationship exists. This bill would apply the same factors for modifying alimony to setting initial
alimony awards. "Supportive relationship" is one where a third party who is neither related to or married
to the ex-spouse resides with that ex-spouse and provides financial assistance to that spouse or to
Currently, in a dissolution proceeding, the court may grant alimony to either party, either to
balance an inequitable property division or to ensure support to a financially dependent spouse.
61.08(1), F.S. Alimony is based primarily upon the need of one party for support and the ability of the
other party to pay. Schlagel v. Schlagel, 973 So.2d 672, 676 (Fla. 2nd DCA 2008). In a long-term
marriage, there is a presumption in favor or permanent alimony. Id. There is no statutory definition of
long-term, although several courts have held that seventeen years or longer is long-term. Hill v. Hooten,
776 So.2d 1004, 1007 (Fla. 5th DCA 2001). The First District Court of Appeal in Zeigler v. Zeigler, 635
So.2d 50, 54 (Fla. 1st DCA 1994) held that 13.5 years was neither "short-term nor long-term" but fell into
the "grey area" where entitlement to permanent alimony should be decided on the pertinent factors of
61.08(2), F.S., without the benefits of a presumption in favor of or against permanent alimony.
C. Presumption of Detriment to Child in Cases of Domestic Violence - CS/SB 2552 (H1315)
Disposition: Referred to Children, Families and Elder Affairs, Criminal Justice, Judiciary,
Health and Human Services Appropriations and died in Judiciary.
This bill amended 61.13(2)(b)1, F.S., creating a rebuttable presumption of detriment to the child
with regard to shared parental responsibility if a parent is convicted of a misdemeanor of the first degree
or higher involving domestic violence. If the presumption is not rebutted, shared parental responsibility,
including visitation, residence of the child and decisions made regarding the child may not be granted to
the convicted parent. If testimony or other evidence regarding domestic violence, sexual violence, child
abuse, child abandonment or child neglect was admitted into evidence, the bill also required the court to
specifically acknowledge its consideration of that evidence in determining the best interests of the child.
Presently, 61.13(2)(b)2, F.S., requires that the court award shared parental responsibility unless
it is proven to be detrimental to the child. Evidence that a parent has been convicted of a felony of the
third degree or higher involving domestic violence creates a rebuttable presumption of detriment to the
child. If the presumption is not rebutted, shared parental responsibility, including visitation, may not be
granted to the convicted parent. The court must also consider evidence of domestic violence or child
abuse as evidence of detriment to the child whether or not there has been a conviction of any offense of
domestic violence or child abuse.
D. Unified Family Court - CS/CS/SB 628 (H145)
Disposition: Referred to Children, Families and Elder Affairs, Judiciary, Criminal and Civil
Justice Appropriations and died in Criminal and Civil Justice Appropriations.
This bill amended 39.001, 61.001, 61.402,63.022, 68.07, 741.2902, 984.01 and 985.02, F.S.
The bill also created 88.1041, 742.016, 743.001 and 1003.269, F.S. The intent of these amendments
and sections was to further implement the concept of a unified family court in the circuit courts.
Additionally, this bill allowed the certification of laymen by a not-for-profit legal aid organization as a
guardian ad litem in non-dependency Chapter 61, F.S., proceedings.
In FY 2005-2006, more than 360,000 cases were filed in Family Court. These cases constituted
the largest percentage of all circuit court cases in Florida - over 42%. In 1994 the Florida Supreme Court
began the process of reviewing the state's treatment of family law cases by the creation of the Family
Court Steering Committee. The Committee's findings were adopted by the Florida Supreme Court in
May of 2001. The Legislature began enacting statutes to implement the Supreme Court's
recommendations in 2005. A major goal of the unified family court concept is to coordinate the court
cases that involve the same family members, specifically minor children, so that decisions are not made
in one case which are directly contrary to the decisions made in another proceeding.
The provision to allow not-for-profit legal aid organizations to train and certify non-attorney
guardian ad litems is the result of the Tallahassee Bar Association's Legal Aid Foundation's efforts. At
this time the Statewide Guardian Ad Litem Office (GAL) oversees the operation of the GAL program in
all 20 judicial circuits. However, since FY 2004-2005, the Office has operated on proviso language
stating that it can only provide services to children in dependency cases. As a result of this limitation,
the Office does not provide or certify non-attorneys to act as guardian ad litems in family law cases. The
practical impact of this scenario is that circuit court judges do not have the benefit of a guardian's
perspective when the parties in family law cases can't afford to pay for a parenting evaluator or an
attorney guardian ad litem.
II. Interim Project Reports on family law issues
A. Interim Project Report 2008-105 - False reports of child abuse, abandonment or neglect.
Disposition: No bill was drafted or introduced to amend 39.205(4), F.S.
This report recommended the amendment of 39.205(4), F.S., to provide clearer guidance to the
Department of Children and Families (DCF) regarding the data to be reported annually related to false
reports of child abuse, abandonment and neglect. At this time DCF has reported that about one-third of
the calls received by its Child Abuse Hotline are immediately screened-out and do not result in an
investigation. Of the remaining reports, one-half are investigated and closed with no findings of alleged
maltreatment. A small percentage of the unfounded reports are flagged as potential false reports - reports
that DCF does not believe were made in good faith.
DCF has the ability to impose an administrative fine not to exceed $10,000 against anyone who
files a false report. 39.206(1), F.S. Additionally, a person who knowingly and willfully makes a false
report of child abuse, abandonment or neglect or advises another to make such a report is guilty of a
felony in the third degree punishable by imprisonment not to exceed five years and a fine not to exceed
$5,000 and may be sued civilly for damages, including attorney's fees and costs. 39.205(6) and (10),
F.S. DCF rarely flags a report as false, pursues an administrative fine or refers the case to law
enforcement for investigation and prosecution. While required to provide the number of false reports to
the Legislature annually DCF has only sporadically done so over the last five years.
It appears to be the intent of the Legislature to require better data on false reporting from DCF so
that it can weigh strengthening the penalties and enforcement of false reports against the possible chilling
effect on the person making a report of suspected child abuse, abandonment or neglect.
III. Legislation being proposed by the Family Law Section of the Florida Bar in 2009
It is the intention of the Family Law Section to actively lobby five of the following bills in the
2009 legislative session. The final determination of which bills will be lobbied has not yet been made.
However, there seems to be strong Section support for lobbying the Alimony Glitch, Parenting
Coordinator, Parenting Glitch and Collaborative Law bills.
A. Parenting Coordinator Bill - Parenting Coordinator Ad Hoc Committee, September, 2008
This proposed bill is new this year and gives parties the ability to consent to the appointment of a
parenting coordinator and the court the ability to appoint a parenting coordinator over the objection of
the parties if after an evidentiary hearing the court finds it in the best interest of the child. In cases where
domestic violence has occurred, the court may not appoint a parenting coordinator without the parties'
consent. Each party shall be given an opportunity to consult with an attorney or domestic violence
advocate before granting their consent.
The bill limits the parenting coordinator's appointment to two years with a status conference held
after 6 months to determine the parents' progress and whether the parenting coordination process should
continue. Either party can request termination of the parenting coordination based upon the same criteria
used to require it initially. Parenting coordination can't be required unless the court determines that the
parties have the financial ability to pay the coordinator's fee or public services are available at no charge.
As a general rule, the parenting coordinator can't testify at hearing or offer evidence regarding
communications made by, between, or among the parties at parenting coordination sessions. However,
the parenting coordinator can testify about the written parenting coordinator's contract, compliance with
the order appointing the parenting coordinator (cooperation of parties, attendance at meetings, etc.) and
where necessary to protect a party or child from domestic violence, abuse or neglect. Within 10 days
from the date of the order requiring parenting coordination, either the parties will agree on a parenting
coordinator or the court will select one.
In order to be appointed by the court as a parenting coordinator, a person must:
1. be licensed as a mental health professional, physician board certified in psychiatry and
neurology, member in good standing of the Florida Bar or Florida Supreme Court
certified mediator with a masters degree in mental health;
2. have three years of post-licensure or post-certification practice;
3. have completed a Florida Supreme Court certified family mediation training program;
and
4. have a minimum of 24 hours of parenting coordination training including the following;
parenting coordination concepts and ethics; family systems theory; family dynamics in
separation and divorce; child and adolescence development; parenting coordination
process and techniques; Florida family law and procedure; and domestic violence and
child abuse considerations.
A parenting coordinator can not:
1. have been convicted or had adjudication withheld on a charge of child abuse, child
neglect, domestic violence, parental kidnaping or interference with custody;
2. have admitted to having, or have been found guilty of having, abused, neglected or
abandoned a child in a child dependency hearing;
3. have consented to an adjudication, or withhold of adjudication, of a petition for
dependency;
4. be currently or have been a respondent in a final order of protection against domestic
violence; or
5. be, or have been, for a party or a party's immediate family member: an evaluator in a
social investigation or study; mediator pursuant to chapter 44, F.S.; psychotherapist;
guardian ad litem; attorney or time-sharing supervisor.
A parenting coordinator is required to immediately report to the court if a substantive change to
the Parenting Plan takes place and is also required to be removed from the case in such circumstances. A
"substantive change" to the Parenting Plan is one which: a) significantly changes the amount or quality of
time spent with each parent; b) modifies the designation of shared or sole parental responsibility or c)
modifies or adds any terms of supervised contact or access between the parents and the child.
As stated in the bill the parenting coordinator's duties are to: monitor the court-ordered Parenting
Plan; assist parties in resolving disputes that arise in the implementation of the Parenting Plan; teach the
parties conflict resolution strategies and "good parenting" techniques; recommend the use of community
resources where appropriate - parenting classes, individual and family counseling, etc.; and recommend
"non-substantive" changes to the Parenting Plan. Unless there is a history of domestic violence, the court
may delegate temporary decision making authority to the parenting coordinator to resolve "non-
substantive" disputes between the parties until a court order is rendered modifying that decision.
Decisions of this type would be subject to de novo review by the circuit court. The court could also
allow the parenting coordinator to have access to confidential and privileged information and to make
recommendations to the court about non-substantive modifications to the Parenting Plan.
A parenting coordinator is specifically prohibited from; addressing financial matters between the
parties; making a recommendation to the court about "substantive" changes to the parenting plan;
modifying the substantive rights of the parties as found in the Parenting Plan or other valid court orders;
allowing or bringing the parties into contact with each other where there has been or there is suspected
domestic violence or abuse; or releasing confidential information received from other professionals
except as ordered by the court or agreed to by the parties.
Parenting coordinators serve until discharged by the court and may be removed at the
coordinator's or either parties' request. No discharge hearing is required unless discharge is requested by
one of the parties. No parenting coordinator duly appointed by the court shall be held liable for civil
damages for any act or omission in the scope of his/her statutory duties unless he or she acted in bad
faith, with malicious purpose or with wanton and wilful disregard for the rights, safety or property of the
parties.
B. Parenting Glitch Bill
This bill is intended to "fix" problems that have been identified since the passage of SB2532 last
legislative session and further creates and/or amends the following sections:
61.046(13)(a)1, 2 Provides that a "parenting plan" can be developed and agreed to
by the parties or established by the court with or without a
Parenting Plan Recommendation if the parties can't agree to a
plan or the agreed upon plan is not approved by the court.
61.046(14) Redefines "parenting plan recommendation" as "a nonbinding
recommendation concerning one or more elements of a
parenting plan made by a mental health practitioner or other
professional defined by section 61.20, 61.401 or Family Law
Rule of Procedure 12.363 appointed by the court.
This allows licensed professionals other than just licensed
psychologists to prepare and testify to a parenting plan in
court.
61.122 Adds licensed mental health professionals other than
psychologists to the persons able to make parenting plan
recommendations and applies the same duties, responsibilities
and professional liability standards to them.
61.13(2)(b) Adds requirement that parenting plan include the address used
for school boundary determination and registration.
61.13(2)(c) Clarifies that change to a parenting plan and time-sharing
schedule requires a showing of a substantial, unanticipated
involuntary change of circumstances.
61.13(d)(3) Clarifies that modification of parental responsibility, a parenting
plan or time-sharing schedule first requires a showing of a
substantial, unanticipated involuntary change of circumstances
and then a determination that modification was in the best
interest of the child.
61.13001(1)(e) Amends the definition of "relocation" to mean change in the
residence of a "parent or other person to a location more than 50
miles from his or her principal place of residence at the time of
the filing of the last action pertaining to the child or the last
order establishing or modifying time-sharing" for a period of 60
consecutive days or more.
61.13001(3) Requires each parent seeking to relocate to file a Verified
Petition to Relocate and serve it upon the other parent and any
person who is entitled to access or time-sharing with the child.
The contents of the petition remain the same as previously
except the language stating that relocation, if in the best interest
of the child, will be allowed unless objected to has been deleted.
This revision appears to allow grandparents or other relatives
who could not object to a child's relocation to now do so if the
court had previously granted them "access".
61.13001(5) Requires parties to file an Verified Answer objecting to the
Petition to Relocate, thus requiring an objection to be filed
within 20 days of service of the petition, not 30 days after
service of the Notice.
61.13001(10) Gives priority to relocation cases and requires that a hearing
must be held on a motion seeking temporary relocation within
30 days of filing the motion and that a hearing on permanent
relocation must be held within 90 days of filing the notice to set
the cause for trial.
61.13001(11) Sets the effective date for these amendments to final judgments
entered before October 1, 2009 if relocation not specifically
addressed; to cases pending on October 1, 2009 where relocation
is at issue; but not to any order prior to October 1, 2009 where
relocation was specifically addressed.
61.20(3) Parents of the child(ren) subject to a parenting plan are
responsible for paying for the plan unless declared to be
indigent.
61.30(1)(a) Requires adjustment of child support if at least 40% of the
overnight time-sharing in a year is had with either parent.
61.30(10) Clarifies that the parent who has less than 40% of the overnight
time-sharing shall pay the parent having more than 60% of the
overnight time-sharing child support payments calculated under
the child support guidelines.
61.30(11)(a)8 Allows the court to adjust the minimum child support amount
based upon the impact of any federal child care tax credit and to
order the execution of a waiver of the IRS dependency
exemption if the payor parent is current in support payments.
741.30(50(a)3 Allows the court in a domestic violence case to enter a
temporary parenting plan and time-sharing schedule which will
remain in effect until the
C. Collaborative Process Act - 61.601, F.S.
Rule 4-1.16 - Declining or Terminating Representation
Rule 12.745 - Collaborative Process
This proposed bill creates 61.601, F.S., the Collaborative Process Act (Act) and Rule 12.745,
Collaborative Process, a family law procedural rule, giving structure to family law attorneys who use a
collaborative process to resolve family law issues rather than judicial resolution. Parties retain attorneys
for the limited purpose of acting as advocates and counselors during the collaborative law process. The
ground rules for the collaborative process are set out in a written collaborative participation agreement.
Each party has the right to terminate the collaborative law process at any time without cause and without
giving a reason, requiring all parties to engage new counsel for any subsequent judicial proceeding which
is "substantially related" to that of the collaborative process.
The Act, the proposed Rule 12.745 and the amendment to Rule 4-1.16, specifically do the
following:
1. specify when and how a collaborative process begins and ends;
2. specifies the minimum contents of the collaborative participation agreement;
3. describes the appropriate relationship between collaborative process and the civil justice
system when the collaborative process is used to attempt to resolve proceedings pending
in court;
4. extends the disqualification requirement to matters "substantially related" to that
submitted to the collaborative law process by the parties, imputes it to the law firm of a
collaborative lawyer, and empowers the courts to enforce it in a pending proceeding
without a separate action for breach of contract;
5. creates an evidentiary privilege of confidentiality for communications made during the
collaborative process;
6. gives the courts discretion to enforce collaborative participation agreements, the
disqualification requirements and the confidentiality privilege in the pending proceeding.
D. Equitable Distribution - 61.075(10), F.S.
This proposed bill addresses the issue of security and interest for deferred equitable distribution
awards currently allowed under 61.075(10), F.S. The rationale for the amendment to the equitable
distribution statute is:
1. An emerging conflict among the District Courts of Appeal regarding the application of
interest to deferred distribution with the Second District recently requiring statutory
interest on deferred payments in Erp v. Erp, 976 So.2d 1234 (Fla. 2nd DCA 2008).
2. Discretionary imposition of security in all District Courts of Appeal.
3. Risk that a deferred monetary award will never get paid.
4. Recognition that payments due in the future must be discounted to their present value or
the "real" value of the award is less than its face value.
5. The proposed bill allows the courts the discretion to determine the definition of "deferred" and to
establish what commercial rate of interest to impose (prime, prime plus, LIBOR, etc.)
E. Child Support Amendments
This proposed bill contains many of the Family Law Section's long-standing policy positions
with regard to child support calculations. This bill does not reduce the threshold for use of the
"substantial parenting" formula from 40% to 20% overnights although the Section is still supportive of
that legislative change.
Subsections of chapter 61, F.S., proposed to be modified are as follows:
61.13(1)(a)1,2 Requires that all child support orders and income deduction
orders entered on or after October 1, 2009 shall state that child
support terminates upon the child's 18th birthday unless child is
disabled, the court finds or the parties have agreed otherwise.
Further, provides that all orders shall have a schedule stating the
child support obligation for each remaining child when any child
is no longer entitled to receive child support and the month and
year that a reduction or termination of child support shall be
effective.
61.14(6)(d) and (12) Arrearage payments on alimony or spousal support shall be
applied first to the current alimony or spousal support due, then
to any delinquent principal, then to interest on the alimony or
spousal support judgment. Interest on all child support, alimony
or spousal support judgments shall be enforceable through all
methods used to enforce the underlying order, including
contempt. No interest will accrue on post-judgment interest.
61.30(1)(a) Provides that the child support amount established in the
guidelines shall be paid from the parent having less than 40%
overnights to the parent having more than 60% overnights.
61.30(2)(b)1-4 Requires the court to make specific findings to impute income
beyond minimum wage and requires the party seeking to impute
income to meet its evidentiary burden by providing competent,
substantial evidence. Creates a rebuttable presumption entitling
the court to impute Florida minimum wage or the party's
residential state's minimum wage on a full-time basis for the
purposes of calculating the child support guidelines amount.
61.30(3)(a) Defines "net income" as gross income less federal, state and
local taxes using gross income, actual filing status, personal and
dependency exemptions, applicable deductions, earned income
credits, child and dependent care credits and other allowable tax
credits.
61.30(6) Removes child support amounts for incomes below the federal
poverty guidelines. Clarifies that the percentages given for
amounts over $10,000 per month shall not be used to determine
child support beyond the amount necessary to satisfy the
reasonable needs of the child or children.
61.30(7) Removes the 25% reduction to child care costs used in the child
support guidelines calculation.
61.30(10) Calculates the total minimum child support by adding the
"minimum child support need" (basic child support obligation)
to the child care costs and health insurance costs. Clarifies that
child support is paid by the parent having less than 40% of the
overnights to the parent having more than 60% of the overnight
time-sharing.
61.30(11) Allows the court to adjust the total minimum child support for
either or both parents when application of the guidelines leaves
the party with a net income that is lower than the current federal
poverty guidelines.
61.30(18) Allows the court for good cause shown to require a parent to
execute a waiver of the IRS dependency exemption when that
parent would otherwise be entitled to the exemption.
409.2563(5)(a) Creates a rebuttable presumption in administrative cases
establishing child support that a parent can earn the Florida
minimum wage or the minimum wage of the state in which that
parent is a resident. When the residential state of the parent
can't be determined, the federal minimum wage as set by the
United States Department of Labor applies.
742.08 Allows the enforcement of child support payments in established
in paternity cases through all of the methods available to enforce
the underlying support order, including contempt. Prohibits the
accrual of interest on post-judgment interest.
F. Alimony Glitch Bill - 61.08, F.S.
The exact language of this bill was not available at the time this summary was written. However,
the Family Law Section has indicated that it this bill will be virtually the same as SB 1416 filed last year
by Senator Diaz de la Portilla discussed above. The purpose of the bill is to allow the court to take into
account "supportive relationships" when initially establishing alimony in a family law proceeding using
the same definitions as found in 61.14(1)(b)2, F.S., applicable to modification proceedings.