Can a Florida Court Extend Child Support Beyond Age 18?

The duty to provide support for a minor child is based upon the child's incapacity, both natural and legal, and the child's need of protection and care.  See Kern v. Kern, 360 So.2d 482, 484 (Fla. 4th DCA 1978).

Court have recognized that a parent's legal duty to support his children ordinarily ceases at the age of majority.  Perla v. Perla, 58 So. 2d 689, 690 (Fla. 1952).  A parent, however, owes a duty of support to an adult child in extraordinary circumstances, such as when the child suffers severe physical or mental incapacitation.  See Kern v. Kern, 360 So. 2d 482, 486 (Fla. 4th DCA 1978).

In 1973, the Florida legislature lowered the age of majority from 21 to 18.   See Fla. Stat. § 743.07.    More recently, the Florida child support statute was modified to require all family law judgments awarding child support to include the following provisions:

1. That the child support for each child will terminate on the child’s 18th birthday unless the court finds that section 743.07(2) applies, or is otherwise agreed to by the parties; 
2. A schedule stating the amount of the monthly child support obligation for all the minor children and the amount of child support that will be owed for any remaining children after one or more of the children are no longer entitled to support; and 
3. The date that the reduction or termination of child support becomes effective. 

See Fla. Stat. § 61.13(1)(a).

In other words, section 61.13, Florida Statutes, requires that a payor's child support obligation automatically adjusts downward as each child reaches his or her 18th birthday.

The Florida legislature has also codified when a support obligation may be extended beyond 18 years of age. Specifically, section 743.07, Florida Statutes, states that child support may be extended beyond age 18 in two situations: (a) where a child is dependent due to mental or physical incapacity that began prior to age 18; and (b) where a child has reached the age of majority, is living at home, attending high school, and reasonably expects to graduate high school before age 19.  This language was added to the statute effective October 1, 1988.  See Penton v. Penton, 564 So. 2d 1114, 1115 (Fla. 1st DCA 1990).  Courts have recognized that these two situations are separate bases to extend child support beyond age 18.  See Miller v. Smart, 636 So. 2d 836, 837 (Fla. 5th DCA 1994).

The difficult question is under what circumstances might a mental or physical incapacity justify an extension of child support?  The statutory uses the word "dependent."  Obviously, the word dependent suggests that a parent will not owe support if the child is out working and self-supporting.  The answer is less clear where a child is moderately incapacitated and living at home.  A troubling example might be a child living at home and suffering from a mild physical disability or a moderate psychological disorder.   In Kern v. Kern, 360 So. 2d 482, 486 (Fla. 4th DCA 1978), Florida Fourth District Court of Appeal held that a dependent child must suffer from a "severe physical or mental incapacity."

Decisions subsequent to Kern that discuss whether an adult child is "dependent" within the meaning of section 743.07, Florida Statutes, have not used the words "suffering" or "severe" when describing the child's mental or physical incapacity.  See, e.g., Carres v. Good-Earnest, 838 So. 2d 577 (Fla. 4th DCA 2002); Miller v. Smart, 636 So. 2d 836, 837 (Fla. 5th DCA 1994).

In Penton v. Penton, 564 So. 2d 1114 (Fla. 1st DCA 1990), the court awarded child support beyond the age of majority due to the child's mental and emotional condition.  In Penton, the parties' son was a sophomore in high school at the time of the divorce. The first district concluded that the son suffered "psychological infirmities" due to the stress stemming from the divorce and was being treated by a mental health professional. The child's emotional condition constituted a dependency, which, when coupled with his economic incapacity, was sufficient to require support beyond the age of majority.

In Pitts v. Pitts, 566 So. 2d 12, 13 (Fla. 2d DCA 1990), the parties' child suffered from learning disabilities, which required him to devote most of his time to his studies.  The court found that the child could not work to support himself while he was in school due to his learning disability.  This decision is noteworthy because the child's disability appeared relatively modest.

Regardless of whether the physical or mental incapacity is "severe," under section 743.07, Florida Statutes, the incapacity must result in the child's "dependency."  Some practitioners and judges may equate "dependency" with "disability."  And, this would be a fair analogy given that the child must suffer from an incapacity that rises to the level of dependency.  Finally, the incapacity - whatever it might be - must have rendered the child dependent prior to his or her attaining the age of majority.  Any supplemental petition to extend child support must be filed before the support obligation terminates.

What is the Deadline for Filing a Motion for Rehearing or New Trial under the Florida Rules of Civil Procedure?

When you practice law for a long time, you get comfortable with the rules.  Many attorneys do not consult their rule books frequently.  Some lawyers don't buy a new copy of the Florida Rules of Civil Procedure.

When the rules of procedure change, there is typically little fanfare.  The Florida Supreme Court amends the rules by publishing an opinion of the court.  On certain occasions, such as the implementation of new rules concerning electronic discovery, the implementation of email service, or the advent of electronic filing, there are articles, updates, or talk among lawyers.

One of the most rigid deadlines in the law is the deadline for filing a motion for rehearing or new trial.  See, e.g., Migliore v. Migliore, 717 So. 2d 1077 (Fla. 4th DCA 1998) (holding that that the attorney missed the deadline where he timely filed the motion but the postmark suggested that it was actually served after the 10-day deadline).  This deadline is also important because filing a timely motion for rehearing or new trial also tolls the deadline for filing a notice of appeal.

On January 1, 2014, Florida Rule of Civil Procedure 1.530 was amended to extend the time for seeking rehearing or a new trial.  The deadline for serving the motion was increased from 10 days to 15 days.  This is a very significant move, as the deadline had been 10 days since the rule was first adopted.  And, the time limit in this rule had been relatively short and not subject to extension.

The Florida Family Law Rules of Procedure were also amended to incorporate Rule 1.530's new 15-day deadlines.

For an interesting discussion regarding the difference between a motion for rehearing and a motion for reconsideration, please look at this Florida Bar article.

When Can A Witness Appear by Phone or Video in a Florida Court Hearing?

Historically, Florida law has allowed a party or witness to testify by phone or video conference only when the parties agreed.  Florida Rule of Judicial Administration 2.530(d)(1) provides that a "county or circuit court judge may, if all the parties consent, allow testimony to be taken through communication equipment."  

Case law interpreting this rule held that, under Florida Rule of Judicial Administration 2.530(d)(1), a trial court's only has discretion to allow testimony to be taken over the phone if all of the parties consent.  See Cole v. Cole, 86 So. 3d 1175 (Fla. 5th DCA 2012).  If the judge allowed a party to testify by phone over the objection of another party, the trial court committed error.   See Cole, 86 So. 3d at 1176 (citing S.A. v. Dep't of Children and Family Servs., 961 So. 2d 1066, 1067 (Fla. 3d DCA 2007)).  Although many judges thought that they had some discretion to allow telephonic appearances under the Rules of Judicial Administration, there was simply no such discretion.  See M.S. v. Dep't of Children and Families, 6 So. 3d 102, 103 (Fla. 4th DCA 2009).

In civil cases, the Florida Supreme Court recently changed the law governing witness testimony via telephone and video.  Florida Rule of Civil Procedure 1.451, titled Taking Testimony, is effective January 1, 2014.

The general rule remains that, when testifying at a hearing or trial, "a witness must be physically present unless otherwise provided by law or rule of procedure."  See Fla. R. Civ. P. 1.451(a).

Under Rule 1.451(b), however, the court may permit a witness to testify at a hearing or trial by contemporaneous audio or video communication equipment (i) by agreement of the parties or (ii) for good cause shown upon written request of a party.  The written request must give reasonable advance notice.  The request must also contain "the substance of the proposed testimony and an estimate of the length of the proposed testimony."  In considering sufficient good cause, the court must weigh and address in its order the reasons stated for testimony by communication equipment against the potential for prejudice to the objecting party.

For purposes of Rule 1.451, the term "communication equipment" means a conference telephone or other electronic device that permits all those appearing or participating to hear and speak to each other simultaneously and permits all conversations of all parties to be audible to all persons present. Contemporaneous video communications equipment must make the witness visible to all participants during the testimony.  For testimony by any of the foregoing means, there must be appropriate safeguards for the court to maintain sufficient control over the equipment and the transmission of the testimony so the court may stop the communication to accommodate objection or prevent prejudice.  See Fla. R. Civ. P. 1.451(c).

Florida Rule of Civil Procedure 1.451 does not relax the traditional "notary requirement" for telephonic or video testimony.  Testimony may be taken over the phone or by video only if a notary public or other person authorized to administer oaths in the witness’s jurisdiction is present with the witness and administers the oath consistent with the laws of the jurisdiction.

According to the committee notes for Florida Rule of Civil Procedure 1.451, in determining whether good cause exists, the trial court may consider the following factors:

• The type and stage of proceeding, 
• The presence or absence of constitutionally protected rights, 
• The importance of the testimony to the resolution of the case, 
• The amount in controversy in the case, 
• The relative cost or inconvenience of requiring the presence of the witness in court, 
• The ability of counsel to use necessary exhibits or demonstrative aids, 
• The limitations (if any) placed on the opportunity for opposing counsel and the finder of fact to observe the witness’s demeanor;
• The potential for unfair surprise;
• The witness’s affiliation with one or more parties, and 
• Any other factors the court reasonably deems material to weighing the justification the requesting party has offered in support of the request to allow a witness to testify by communications equipment against the potential for prejudice to the objecting party. 

If the factors weigh against audio testimony, the court should consider the cost and availability of contemporaneous video testimony as an alternative to permitting audio testimony.  In other words, with the advance of technology, video is widely available and may be a preferable medium for permitting testimony.

Notably, the Florida Family Law Rules of Procedure do not presently include a counterpart to Rule 1.451.  In other words, the Family Law Rules do not provide the same discretion allowed in civil cases.  This may cause confusion among family law parties, practitioners, and judges.  While telephonic and video testimony will presumably become more common in civil cases, these advances in technology were not initially adopted by the Family Law Rules Committee.  The Family Law Rules committee acknowledged in its January 2014 meeting that this inconsistency between the civil rules and the family rules was likely to create confusion.  As a result, the Family Law Rules Committee voted unanimously to send proposed Rule 12.451 of the Family Law Rules of Procedure to the Florida Supreme Court.  The proposed rule may be sent to the Florida Supreme Court as an out-of-cycle amendment.

Until Family Law Rule of Procedure 12.451 is adopted, family law cases are still governed by the Rules of Judicial Administration.

Under Rule 2.530 of the Florida Rules of Judicial Administration, a judge may, upon the court’s own motion or upon the written request of a party, direct that communication equipment be used for a motion hearing, pretrial conference, or a status conference. A judge must give notice to the parties and consider any objections they may have to the use of communication equipment before directing that communication equipment be used.  Subject to certain exceptions, the trial judge has discretion when deciding whether to allow a party to appear by phone or video. 

Rule 2.530 mandates that telephonic appearances be allowed under certain circumstances.  When the hearing is set for 15 minutes or less and a party gives reasonable notice and makes a written request to appear by phone or video, the judge must grant the request absent a showing of good cause to deny the same. 

With respect to testimony at a longer hearing, Rule 2.530 provides that a county or circuit court judge, general magistrate, special magistrate, or hearing officer may allow the testimony to be taken through communication equipment if all parties consent or if permitted by another applicable rule of procedure. 

A party seeking to present testimony by phone or video must, prior to the hearing or trial at which the testimony is to be presented, contact all parties to determine whether each party consents to this form of testimony.  The party seeking to present the testimony shall move for permission to present testimony through communication equipment, which motion shall set forth good cause as to why the testimony should be allowed in this form. 

Testimony may only be taken by phone or video if a notary public or other person authorized to administer oaths in the witness’s jurisdiction is present with the witness and administers the oath consistent with the laws of the jurisdiction.  Many practitioners still fail to have a notary present when their witness is appearing via phone or video.  

If the testimony to be presented utilizes video conferencing or comparable two-way visual capabilities, the court in its discretion may modify the procedures set forth in this rule to accommodate the technology utilized. 

If you have questions about presenting your case in family court, please contact an experienced Florida family law attorney.

TampaFamilyMediators.com - A Directory of Family Law Mediators in Tampa

We developed a new website that serves as a directory of Tampa family law mediators. Many of us tend to mediate with the same proven mediators. But, a scheduling conflict or other issue circumstances may require you to seek an alternative. Provide this link to your staff or opposing counsel to help select a qualified mediator who can help resolve your case.


If you mediate cases in Tampa and you would like to appear on the site (no charge), please don't hesitate to contact me.

TampaFamilyMediators.com

Can I Get My Family's Diamond Engagement Ring Back in My Divorce?

Divorce clients often ask whether an engagement ring is considered a marital asset in subject to equitable distribution.  In the case of short-term marriages, some Husbands will even inquire whether the ring will be returned to them.  

Under Florida law, when the parties become married, the Husband no longer has any right to seek a return of the engagement ring.  Nor is the ring marital property to be included in the equitable distribution scheme.  In short, the ring is simply a premarital gift that is owned solely by the Wife.  See Melvik v. Melvik, 669 So. 2d 328 (Fla. 4th DCA 1996); Greenberg v. Greenberg, 698 So. 2d 938 (Fla. 4th DCA 1997).

Most clients accept that the law allows the Wife to keep her engagement ring.  The issue is more complex where the ring is a "family heirloom" that previously belonged to a member of the Husband's family.  

In one case, the Husband asked the Judge to order that the "heirloom" ring be returned to him.  The Court did so, ordering that the ring would be passed on to one of the parties' children.  Florida's Second District Court of Appeal reversed this "Solomonic" decision, reasoning that there is no special consideration for a ring that is a family heirloom.  See Randall v. Randall, 56 So. 3d 817, 818-819 (Fla. 2d DCA 2011).

In Randall, there was no reference to any agreement requiring the Wife to return the ring in the event of a divorce.  If the parties reached any agreement, the Husband may have a civil claim to recover the ring. 

If you have questions about your rights in a dissolution of marriage case, contact an experienced Tampa family law attorney.

International Parental Kidnapping and Child Abduction: Deterrence and Prevention under Florida Law

Benjamin Franklin taught us that "an ounce of prevention is worth a pound of cure."  This idiom rings particularly true in the context of parental kidnapping and abductions.

We recently blogged about the deterrence and prevention of parental kidnapping and abduction under federal and international law.

Florida parents and family law attorneys should also know about remedies that are available under state law.

If you have a parenting plan, time-sharing schedule, or custody order in place, and you have evidence that there is a risk the other parent may violate the order by removing the child from Florida, taking the child outside the United States, or by concealing the whereabouts of the child, section 61.45, Florida Statutes, allows a court to enter an injunction to protect the child.

Under section 61.45, the court is broadly empowered to take steps designed to prevent and deter child abduction and international kidnapping.

First, the court may order that a parent may not remove the child from Florida without the notarized written permission of both parents or further court order.  See Fla. Stat. § 61.45(1)(a).  This provides civil and criminal contempt as remedies if the parent removes the child from the state.  An order granting this relief may also provide a basis for a child pickup order in a foreign state.

Second, the court may prohibit a parent from removing the child from this country without the notarized written permission of both parents or further court order.  See Fla. Stat. § 61.45(1)(b).  If the court places limits on the parent's ability to remove the child from the United States, a certified copy of the order should be sent by the parent who requested the restriction to the Passport Services Office of the United States Department of State requesting that they not issue a passport to the child without their signature or further court order. The Department of State operates the Children's Passport Issuance Alert Program, which alerts parents if anyone applies for a passport for a minor child registered in the Department's Passport Lookout System.   This program provides parents advance warning if someone is planning international travel with the minor child.  A parent can register any child that is a U.S. Citizen by completing an entry request form.

Third, the court may take a more narrowly tailored approach to limiting a parent's international travel.  Specifically, the court may prohibit a parent from taking the child to a country that has not ratified or acceded to the Hague Convention on the Civil Aspects of International Child Abduction.  See Fla. Stat. § 61.45(1)(c).

Fourth, and perhaps most importantly, the court may require the at-risk parent to surrender to the court or the petitioner’s attorney any United States or foreign passport issued in the child’s name, including a passport issued in the name of both the parent and the child.  A parent may also be enjoined from applying on behalf of the child for a new or replacement passport or visa.  Additionally, the Court may require that a party post bond or other security in an amount sufficient to serve as a financial deterrent to abduction, the proceeds of which may be used to pay the reasonable expenses of recovery of the child, including reasonable attorney’s fees and costs, if the child is abducted.  See Fla. Stat. § 61.45(1)(d).

If the court imposes one of the foregoing limitations on the parent, the court may also place additional travel restrictions requiring a party to provide a travel itinerary for the child, a list of physical addresses and telephone numbers at which the child can be reached at specified times, and advance copies of all travel documents.

The court is also expressly permitted to prohibit a parent from removing the child from school or a child care or similar facility or even approaching the child at any location other than a site designated for supervised visitation.

As a prerequisite to exercising any time-sharing with the child, the Court may require the at-risk parent to provide the following:

1. An authenticated copy of the order detailing passport and travel restrictions for the child to the Office of Children’s Issues within the Bureau of Consular Affairs of the United States Department of State and the relevant foreign consulate or embassy.
2. Proof to the court that the respondent has provided the required information.
3. An acknowledgment to the court in a record from the relevant foreign consulate or embassy that no passport application has been made, or passport issued, on behalf of the child.
4. Proof to the petitioner and court of registration with the United States embassy or other United States diplomatic presence in the destination country and with the destination country’s central authority for the Hague Convention on the Civil Aspects of International Child Abduction, if that convention is in effect between this country and the destination country, unless one of the parties objects.
5. A written waiver under the Privacy Act, 5 U.S.C. § 552a, with respect to any document, application, or other information pertaining to the child or the respondent authorizing its disclosure to the court.
6. A written waiver with respect to any document, application, or other information pertaining to the child or the respondent in records held by the United States Bureau of Citizenship and Immigration Services authorizing its disclosure to the court.
7. Upon the court’s request, a requirement that the respondent obtain an order from the relevant foreign country containing terms identical to the child custody determination issued in this country.
8. Upon the court’s request, a requirement that the respondent be entered in the Prevent Departure Program of the United States Department of State or a similar federal program designed to prevent unauthorized departures to foreign countries.

See Fla. Stat. § 61.45(3)(d).

The Court may also order supervised visitation with the child to prevent child abduction or parental kidnapping.  See Fla. Stat. § 61.45(3)(e).  This visitation may remain in effect until the court finds that supervision is no longer necessary and require the at-risk parent to pay the costs of supervision.  See Fla. Stat. § 61.45(3)(e).

In assessing the need for a bond or other security, the court may consider any reasonable factor bearing upon the risk that a party may violate a parenting plan by removing a child from this state or country or by concealing the whereabouts of a child.  Among other things, the court may consider the following:

1. Whether a party previously removed a child from Florida or another state in violation of a parenting plan, or whether a court had found that a party has threatened to take a child out of Florida or another state in violation of a parenting plan.  
2. Whether the party has strong financial, family, and community ties to Florida or to other states or countries, including whether the party or child is a citizen of another country.  
3. Whether the party has engaged in activities that suggest plans to leave Florida, such as quitting a job, selling a residence, terminating a lease, closing bank accounts, liquidating assets, applying for a passport or visa, or obtaining travel documents for the respondent or the child.  
4. Whether the party has a criminal record or a history of domestic violence as either a victim or perpetrator, child abuse or child neglect evidenced by criminal history.  
5. Whether the at-risk party is likely to take the child to a country that is not a party to the Hague Convention on the Civil Aspects of International Child Abduction and does not provide for the extradition of an abducting parent or for the return of an abducted child.  Even if a country has ratified the Hague Convention, the court may still inquire whether the country has adequate mechanisms for enforcement of a U.S. custody order, is safe, and/or has laws that would protect the other parent's relationship with the child, is a sponsor of terrorism.  
6. Whether the at-risk party is undergoing a change in immigration or citizenship status that would adversely affect the respondent’s ability to remain in this country legally, has had an application for United States citizenship denied, or has forged or presented misleading or false evidence on government forms or supporting documents to obtain or attempt to obtain a passport, a visa, travel documents, a social security card, a driver’s license, or other government-issued identification card or has made a misrepresentation to the United States government.  
7. Whether the at-risk party has been diagnosed with a mental health disorder that the court considers relevant to the risk of abduction.

See Fla. Stat. § 61.45(4)(a-m).

If the at-risk parent violates the parenting plan by removing a child from this state or country or by concealing the whereabouts of a child, the court may order the bond or other security forfeited in whole or in part.  See Fla. Stat. § 61.45(7)(a).

Significantly, section 61.45 does not apply to a parent is determined by the court to be a victim of an act of domestic violence or provides the court with reasonable cause to believe that he or she is about to become the victim of an act of domestic violence.

In addition to the foregoing remedies under Florida law, a parent whose child is at risk of international kidnapping or child abduction should be familiar with the applicable federal and international deterrents, laws, and remedies.  A parent concerned about child abduction should also consult an experienced child custody attorney.

International Parental Kidnapping and Child Abduction: Deterrence and Prevention under Federal and International Law

If your child is at risk of being abducted to a foreign country, you need to be vigilant about your rights, who to call, and what to do if an abduction occurs or is about to occur.

There are a number of federal laws and programs designed to prevent the wrongful removal of children from the United States.  The U.S. Department of State provides a summary of federal and international prevention tools on its website.

The Department of State operates the Children's Passport Issuance Alert Program, which alerts parents if anyone applies for a passport for a minor child registered in the Department's Passport Lookout System.   This program provides parents advance warning if someone is planning international travel with the minor child.  A parent can register any child that is a U.S. Citizen by completing an entry request form.

The Department of State also operates an Emergency Hotline for abductions that are in progress where the child is being abducted by a family member and the child is not yet abroad.

If your child has already been removed from the country, Department of State’s Bureau of Consular Affairs can open an International Parental Child Abduction Case.  The Bureau of Consular Affairs may also be able to use its resources to assist you in locating your child.

If your child has already been removed from the United States, you may be able to seek relief under international law.  Currently, there are 72 signatories to the Hague Convention on the Civil Aspects of International Child Abduction.  If your child is under 16 years of age and abducted to a country that is a signatory to the Hague Convention, you may be able to obtain a return order under the Convention.  The Hague Conference on Privation International Law publishes an outline summarizing the child abduction aspects of the Hague Convention.

If your child is abducted to a country that is not a signatory to the Hague Convention, you may be able to use that foreign country's legal system to regain custody of your child.

The Department of State operates an Attorney Network, which consists of attorneys with Hague Convention return and access cases.

Lastly, you can ask authorities to file criminal charges against the parent who abducted your child.   The International Parental Kidnapping Act of 1993 makes it a federal crime to remove a child from the United States or retain a child outside the United States with the intent of obstructing the lawful exercise of parental rights.

If you need more information about actions to take to prevent or respond to an international child abduction, The National Center for Missing & Exploited Children, Department of Justice's Office of Juvenile Justice and Delinquency Prevention, and the American Bar Association have made the following publication available:  Family Abduction:  Prevention and Response.  The Department of Justice's Office of Juvenile Justice and Delinquency Prevention also publishes A Family Resource Guide on International Parental Kidnapping.  Both of these publications are full of helpful information.

If you are in Florida, you should be aware of remedies under Florida law to deter the risk of international child abduction or parental kidnapping.  You should also consult an experienced Florida child custody attorney.