Considering how to care for children in a post-divorce setting is often a stressful and difficult task. If a child has special needs, many less-typical factors must be considered. Whether the child has a disability, diagnosed disorder, or another medical or social issue, a parenting plan and custody arrangement must be in the child’s best interests, and must be crafted in such a way that their needs continue to be met.
A parenting plan is required in all cases where children are involved. The parenting plan outlines each parent’s time sharing arrangements with the children, as well as other important items such as travel restrictions, child care instructions, and school designation. If a child has special needs, additional information and instructions for caring for that child should be outlined, in detail, in the parenting plan. For example, perhaps overnights with one parent may not be acceptable, or the child will need to be removed from school early to attend doctor’s appointments or counseling. If one parent has generally been the caregiver of the child with special needs throughout the marriage, it may be in that child’s best interests for that caregiving parent to have sole decision-making authority over that child’s medical needs. Regardless of the special needs of the child, if any specific instructions are required for that child’s care it should be outlined in the parenting plan.
Child support may be modified when a special needs child is involved. While child support is most often calculated pursuant to the Florida Child Support Guidelines, the number determined may not be sufficient depending on the care required and the severity of the child’s disability or disorder. For example, medical costs, therapists, doctors, medications, caregiver costs, or special education are some of the additional costs to consider for a child with special needs. A predetermined child support amount may not cover the needs of the child, especially if the child’s needs may increase as they grow older. In Florida, child support terminates at the age of majority or at a child’s graduation from high school. Often, however, a special needs child requires support past the age of majority, and specific language and guidance is needed in an agreement to ensure that the child receives support past the age of majority.
Your children are so important. If you are going through a divorce or paternity matter and your child has special needs, it is imperative that the future needs of the child are considered, as well as any needs of the caregiving parent. Kirkner Family Law Group is here to help you create the best possible plan for the future of you and your children. Contact us today or call (813) 254-0156 to discuss your needs.
In a military divorce involving children, parenting time is a major consideration and should involve a parenting plan.
By Kristin R.H. Kirkner, BCS
A divorce involving a military family is different from a civilian family because we need to account for frequent moves, or a permanent change of station (PCS). Just because a spouse knew that PCS’s were a part of the package when getting married doesn’t mean that the spouse is going to be accommodating in a divorce! It is helpful to anticipate and plan for a PCS when structuring a timesharing plan.
In Florida, the courts use the terms “time-sharing” or “parenting plan” instead of “custody” or “visitation” like the courts in some other states use. Parenting time is separate from “parental responsibility”, which basically means decision making for the child. Although I am only discussing timesharing in this entry, a Parenting Plan will address the division of both parental responsibility and timesharing between the parents.
When structuring a time-sharing plan, you need to first consider the viability and cost of the timesharing when taking into consideration the distance between the parents’ homes. For example, it is a nice idea to have a parenting plan that allows for alternate weekends, but if one party lives in Florida and the other lives in California, alternate weekends aren’t going to work because most families do not have the funds to fly children across the country multiple times each month, and it is probably not in the children’s best interests to spend the majority of their weekends traveling.
One option that I find works for families where frequent PCS’s occur, and where the children will reside with the non-service member parent, is to set out several different time-sharing plans based on the distance between the parties’ homes. For example, we would have one timesharing plan that applied if the parties lived in the same city, another for if the parties live in the same state and yet another if the parties live in the same country. This takes time, patience and a lot of work on the front end to work through these different scenarios, but the goal is to keep the family out of court in the future and to create a parenting plan that will work for the family in the long run.
If the child is going to reside with the service member parent, it is helpful to have a clause that allows for free relocation. In Florida, the statute provides that a parent can not relocate more than 50 miles away from their residence at the time the prior Order was entered without a court order or the consent of the other parent. There is nothing more stressful than trying to PCS and having to worry about whether your child will be coming with you to the next duty station! A free relocation clause is invaluable if one can be negotiated, as it will prevent future litigation and a lot of heartache. I will discuss relocation in a future blog, as relocation is a huge subject in itself, it merits mention here because it tends to disproportionately affect military families.
It is critical to hire an attorney who specifically handles military divorces and who understands both the cycle and nature of a PCS. As a military spouse, I am in a unique position to understand the difficulty and impact that a PCS can have on the family and to help you develop a parenting plan that will meet your needs. If you are considering a military divorce, or if you have a parenting plan that just isn’t working for your family, please fill out the form below or call my office to schedule a consultation.
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Post Decree Modification of Child Support
Generally, child support is a noncustodial parent’s obligation to support a child until he reaches age 18, graduates from high school, or is otherwise emancipated. A child can be emancipated through a statutory process by entering the military service or by getting married. If a child is disabled or suffers from a debilitating disease, the support obligation can continue beyond those events. If a child attends college, there may be no statutory basis for child support but there may remain an obligation to provide post-high school tuition, costs, fees, and room and board.
When a child support award is entered, it is usually based on a statutory calculation that considers the number of children to be supported by the obligor, who is the person responsible for paying the support; the assets of the obligor; and the amount of income received by the obligor from all sources. Those factors are the background that existed at the time the support award was entered. Often, as the years pass, the needs of the children change; or perhaps the obligor’s ability to pay changes. All support obligations are modifiable in the future to take into consideration those changes. Either parent may petition the court for modification.
Generally, the petitioning parent may be entitled to a modification in child support when the parent can show evidence of a drastic change in the parties’ income and earning abilities, the assets available for support, employee benefits due each party, the costs of rearing the children, the health conditions of the parent or the child, and a change in custody. Some states will also accept as change evidence that a party has a new spouse with additional income or evidence that new family responsibilities have arisen. Generally, courts will not consider evidence of change that was created by the obligor, who seeks to reduce his child support obligation, as those courts believe that the obligor was aware of his responsibility to provide support and should not have undertaken new obligations that impaired that responsibility.
Most states require a judge to approve an order that changes a party’s obligation to pay child support because a judge has a duty to act in the best interests of the child and to insure that the parties do likewise. All states recognize that a modification in child support must be reduced to writing in order to be valid and effective. No matter how well parties get along, no party is justified in relying on the other party’s oral acceptance of the oral modification. A court is not bound by the parties’ informal modification agreements and can hold a party in contempt of court if he or she fails to comply with the court order that is on file. Unless a modification agreement is reduced to writing and made a part of a court’s file, the modification may not be valid or enforceable.
Retroactive Child Support Awards
In most states, initial child support awards may be made retroactive to the date of filing and modifications may be retroaction to the date a modification is requested. In some states, retroactivity is mandatory, and in others, it is discretionary.
Most of the time, the first child support award is made retroactive from the date of filing. In some states, a child support award may be retroactive to a period prior to the petition for support. If the mother received welfare benefits, child support may be awarded retroactive to the date benefits were first paid. Any payments made between the effective date of the child support order and the date the court makes a determination of support will be credited against any retroactive amount found to be due. In California, an order for child support may be made retroactive to the date of filing, but if the parent ordered to pay support was not served within 90 days and he did not evade service, the order may not be effective before the date he was served. In Florida, an order of support may be retroactive to the date the parties separated, but no more than 24 months prior to the filing of the petition. In Indiana, an award may be retroactive to the date of the child’s birth.
It is often the case that the first child support award is a temporary award, made before the parties have been able to fully discover all of the income of the parents and expenses of the child. In such cases, when child support is finally determined, there is a reluctance to alter the amount owed while the temporary order was in effect, particularly where the parent who pays child support has met his or her obligation. However, where there is a significant difference in the amount of support or if a parent had intentionally hidden or reduced his or her income, a tribunal may award a retroactive increase.
When a court modifies an award of child support, it may make the award retroactive to the date that a modification was requested, but it cannot go beyond that date. It is within the discretion of the tribunal as to whether to make the award fully or partially retroactive to the date of filing. In some states, a person seeking modification must present evidence demonstrating why the order should be retroactive to the date of the date of filing. In other states, retroactivity is presumed, unless the court is decreasing the amount of support.
Preference of Child in Custody Determinations
In awarding or modifying custody, one of the factors considered by a court is the preference of a child, However, the extent to which the court will consider an expressed wish and how much weight the court will give that wish depends on the age and maturity of the child and the circumstances under which the choice was made.
When Preferences Are Given Little Weight
As a rule, children love both of their parents and one of the most difficult decisions for the child to make is whether to live with one parent rather than the other. Children want both parents to live together, and they want to live with both of them. No court wants to place a child in the position of choosing, and courts often ignore or give very little weight to an expressed preference, particularly when the child is very young. Some courts will not permit the child to testify as to a preference. One reason is that the court may be concerned that the child has been coached. Where the child is living with one parent prior to a court hearing, not only the parent, but the parent’s relatives all too often seek to sway the child. It is for the court to determine what is in the child’s best interests in deciding custody regardless of the stated preference of the child.
When Preferences Are Considered
As a child grows older and begins to form independent decisions, the court will listen to the child to find out which parent, if either, the child would prefer to live with and the reasons the child gives for that desire. A child might want to live with a parent because that parent has been the primary caretaker during the course of the marriage. A daughter may want to live with a father because the mother and daughter are constantly battling and the daughter feels closer to the father. On the other hand, a child might want to live in the house that is bigger, has more expensive toys, and the parent is wealthier, but if that parent works excessive hours and is not available for the child, the court could deny the request. A child may want to change schools because of the difficulty of the school program or because of the type of students. Before a court grants the request, the court is required to determine what is best for the child.
Where a child has reached the age where the child may petition the court for a change in custody, courts often grant the child’s wishes. However, the request will be denied if the person the child chooses to live with is abusive or violent, or where there is clear evidence that the choice is not in the best interests of the child.
Modification of Custody based on Parental Unfitness
If subsequent to the time a court awarded joint or sole legal custody to a parent, the parent becomes unfit to have custody of the child, a court will not hesitate to modify custody.
There are various reasons for finding parents, or a parent, to be unfit to have the care and custody of a minor child. A mother who carried on an affair with another man for years, passing off her child with that man as the son of her husband, was found to be unfit as lacking morals and unable to teach values to her child. A parent who abuses drugs or alcohol and is unable to care for the children will be found unfit to have custody. A parent who unfortunately was severely injured in an accident or who suffers from a disabling disease, and as a result cannot care for herself or himself, may not be able to care for a child and would be found “unfit.” A parent who cannot keep a job or an apartment, and cannot demonstrate an ability to provide a stable home environment for a child may be found unfit. A parent who physically and mentally abuses a child is unfit. A parent who ignores the needs of a child, fails to provide an education, fails to provide health care, and fails to provide adequate clothing or food will also be found unfit.
A court will look not only at the mental and physical ability of a parent to have custody of a child, but will also look at the parent’s morals. A parent who fails to show up for scheduled court appearances will be seen as lacking in respect and will not be viewed as a positive influence on the child. A parent who consistently brings a child late to school and permits the child to miss excessive days of school is not a parent who puts the needs of the child first and in some states is subject to having the child removed by the local social services agency. A parent, who leaves children under the age of six in a home, while the parent goes to work, goes on a date, or goes shopping, may be found guilty of neglect and not fit to have the care and custody of the children. A parent who uses excessive force in disciplining a child or who disciplines a child in an abusive manner or at times when no discipline is warranted may also be found unfit. A parent who works excessive hours, so that he or she is not awake and able to care for the child or supervise the child’s activities, may be found unfit.
Although a court is required to show a change of circumstances before modifying an award of custody, where there is a showing that a parent is unfit to have custody, the court may modify custody and grant custody to the other parent. If the other parent is not available or fit to have the care and custody of the child, the court may decide to place custody of the child or children with another relative, such as a grandparent, aunt, or uncle, or with a foster family.
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