Bad Faith & Attorney's Fees

An appellate rule change pending now before the Florida Supreme Court could make it easier for a party to seek attorney's fees and costs when the other side acts frivolously or in bad faith. The change was recommended by a vote of 39-0 by the Appellate Court Rules Committee. Under the current rules there is a deadline for lawyers to seek fees and costs from the other side pursuant to Florida Statute, section 57.105. If the bad conduct on the other side occurred after that time deadline, then technically the lawyer could not see relief through fees and costs. The change proposed modifies the rules to allow the lawyer to move for fees and costs because of bad conduct at any point in the case. It is clearly a logical and necessary rule change to try to curtail bad behavior.

UPDATE: Bill Becomes Law

Earlier this week, Governor Charlie Crist signed into law SB 904. That bill creates a statutory scheme for parenting coordinators, streamlines relocation litigation, clarifies the modification standard for cases involving parental responsibility, timesharing and parenting plans and establishes clearly the professionals capable of making parenting plan recommendations. This is especially remarkable in a year when little more than 10% of the over 2,000 filed bills passed both houses of the Legislature.

Iran's Election

Early last week I began trying to determine when exactly it would be likely for us to learn who had won the election in Iran. I contemplated the time zone difference and the small number of Western news outlines operating inside Iran. But truly I didn't contemplate the problems that are now suspected. Will we ever know who really won the election? It would be a shame not to, for so many reasons, not the least of which is the turnout of 85% of Iran's voting population. That is an astounding percentage of people who felt their voice would be heard and needed to be heard. It is another reminder to me of the wonder of our own democracy, warts and all.

Pending Bill on Children's Issues

The Children's Issues Bill (CS/CS/CS/SB 904) was sent to Governor Crist on Wednesday, June 3, 2009. It is now awaiting the Governor's signature. Some of the highlights of this bill include:

* The bill recognizes and authorizes the parenting coordination process and provides long-overdue qualifications for those serving as parenting coordinators and standards and safeguards for the process itself.

* The bill corrects a mistaken interpretation of last year's parenting bill that modification actions no longer required a showing of a substantial, material and unanticipated change in circumstances.

* The bill provides needed clarification that there is no presumption for or against any particular time-sharing schedule.

* The bill clarifies and streamlines the process to be followed when a parent seeks to relocate his or her residence.

The Presumptive 50/50 Time-Sharing Myth

The revised parenting statute that became law effective October 1, 2008, (Senate Bill 2532) has been the source of at least one myth, namely that this law establishes a 50/50 presumption for time sharing.

There is a long history of attempts within the Florida Bar's Family Law Section at revising and improving the custody statute. In recent years a concerted effort was made by some to adopt a "mandatory or presumptive 50/50 custody" approach. This concept was thoroughly examined and the expert opinions of mental health professionals familiar with children needs were carefully considered. This idea was strongly rejected by the study committee based on the overwhelming opinion of these experts who felt that such presumptions are not in the best interest of children, each family being considered unique, with its own history and dynamics. The conclusion was that a one-size-fits-all approach was completely out of place in matters relating to children where a determination of the children's best interests, based on the circumstances of each family, is the controlling standard.

The new October statute did not alter the basic shared parenting principles of our law. The supporters of the 50/50 interpretation point to the specific prohibition against any presumption for the father or the mother (Section 61.13 (2) (c)), the absence of any other clear language, and the deletion of such terms as "custodial" and non-custodial" parents to make their argument. However, viewing the terminology deletions in isolation, and focusing on the lack of other language in this one section, is simply to look at less than half the picture. First, there is absolutely no language creating a 50/50 presumption, and simple logic would dictate that such a "climate changing" event would have been noted during the drafting. Second, parenting determinations are based on best interests, and the factors make it clear that best interest is to be determined by considering the detailed history of every family and its unique facts. See 61.13(3). Moreover, many of the factors contain specific language as to the parents' "demonstrated capacity" or "demonstrated disposition for..." performing particular parenting tasks. See 61.13(3) (a) (c) (j) (k) (o) and (r). Rather than starting with a full range of options to be used depending on the circumstances of each family, the 50/50 time sharing idea arbitrarily sets an artificial starting point. There is a proposed legislative fix is pending, making it clear that there are no presumptions as to time sharing and emphasizing that the individual circumstances of each family are to be considered in determining best interest.

Regardless of what percentage of time sharing may result, any parenting plan or time sharing schedule that is supported by a thorough application of the factors merits serious consideration; focusing on a desired end product, with only a passing regard for the factors, is to protect the perceived best interests of one parent at any cost, the very approach that the statute disfavors. Lawyers best help by putting the client in the best factual light, highlighting the involvement and caring for the child that has taken place, and can continue to be expected, or work towards rehabilitation if needed. This is going to take the kind of early review and preparation that good attorneys are known for, and a lack thereof will have serious consequences.

Pending Bills Will Increase Filing Fees

Today, I received a letter from our locally elected, Clerk of Court, Ken Burke. He advises that 2 bills which passed the recent legislative session and are awaiting the Governor's signature cause some serious concerns. The bills in question are Senate Bills 1718 and 2108.

The first bill will dramatically increase filing fees by instituting a graduated scale for real property or mortgage foreclosure cases where, in some cases, filing fees may be as high as $1,900. The bill also greatly reduces the operational funding for Clerks statewide which will result in severe staff reductions and necessarily impact service levels.

The second bill restricts spending for technology initiatives that would enable the Clerk to further streamline work processes and increase office efficiency.

While these bills address items that may not be very glamorous they have real impact on all of us and fundamental right to access and effectively utilize the Court system. We need the system to civilly resolve disputes. I know that our Pinellas County Clerk’s Office is committed to providing exceptional service in all areas of operation under Mr. Burke's leadership.

Consider if you would like to help let Governor Crist know the negative impact of these bills, and if so, get involved and send him a letter. The address is: Office of Governor Charlie Crist, State of Florida, The Capitol, 400 S. Monroe St., Tallahassee, FL 32399-0001

Child Support Forgiveness in Adoption Cases

Upon entry of a Final Judgment of Adoption of Minor Child, it is clear that the birth parents' ongoing child support obligation ends. But in Step-Parent Adoption cases, past due child support (arrearages) may also be forgiven even though the case law on child support states that the right to child support belongs to the child. What cannot be forgiven by the prospective parents are payments owed to third parties, like the Clerk of Court or the Department of Revenue. A motion related to forgiveness would be filed after the adoption is finalized and only if the adopting parents freely and voluntarily wish to do so. See Florida Statutes, Section 63.212(e).

New FL Supreme Court Approved Parenting Plans

This past month, the Florida Supreme Court, came out with their approved parenting plan forms, along with some additional revised forms. These forms can be found at the Supreme Court's website, www.flcourts.org. The Supreme Court's website has two parenting plan forms. The first is a "regular time-sharing" parenting plan form and the second is a "safety based" parenting plan form. Prior to these forms, the parenting plan forms being used were independently created in various circuits across Florida. The Florida Supreme Court forms should make the plan forms used more uniform statewide. In truth, the old ones in use and the new forms are quite similar but there are a few small but significant differences like in the holiday visitation section and the extra-curricular activities section.

LAWYER JOKES

My Dad loves telling me lawyer jokes. So do quite a few of my friends and some of my clients too. So I'm passing on the 2 I've heard recently here:

What does a shark do to lawyer who falls overboard?
- Nothing, professional courtesy.

There's a lawyer, an accountant and an engineer together. Someone asks them, "What is 2 +2?" The accountant says "4." The engineer says, "Let me run the numbers & get back to you." The lawyer says, "What do you want it to equal?"

FILING FEES

In the summer of 2008, there was an increase in court filing fees that occurred state wide. What was more shocking for most of us was not that the courts were charging $408.00 rather than $363.00 for a new divorce filing, but that there would be a $295.00 charge for all counter-petitions. Seems like many people around the state are in an uproar over the charge for a counter-petition for dissolution of marriage. Apparently some county clerks (though not Ken Burke here in Pinellas County) are continuing to charge this fee even after the Attorney General issued a formal opinion that stated that the filing fee for counter-petitions was not authorized in family law cases. Now the clerks of the court are subject to a class action suit which has been filed in Hillsborough County about the wrongful charging of these filing fees. It'll be interesting to see how this all pans out, but I would hope that the clerks would have to return these fees to the people who have already paid them and to stop collecting the fees from future counter-petitioners.