ANDREW M. SMITH, ATTORNEY

Florida law requires Parenting Plans for all divorcing couples with children starting October 1, 2008. Florida law has a strong public policy to keep both parents in frequent and continuing contact with their children after divorce. In Florida law, parenting issues are divided into three categories: parental responsibility, time sharing and support. This article examines the time sharing section of a parenting plan.

The time sharing section of your parenting plan spells out when the children will be with each parent. Many Florida courts currently have “model schedules” for visitation. You can also check the websites of the larger urban areas near you for their models. For example, Miami, Tampa and West Palm Beach all have model schedules, but Orange County and Broward County do not.

You will want to read the model schedule for your area for two reasons. First, you will see what a partial parenting plan looks and sounds like. Second, you may decide that the model schedule in your area is appropriate for your family. If so, the timesharing part of your parenting plan is done when you attach a copy of the model to your plan and make reference to it.

If the model schedule for your area is not appropriate for your family, you may decide that the model plan can be re-worked for your family. You may also want to do an online search and look at some time sharing schedules from other areas of the country. Just be sure to include all the plan sections that Florida requires.

As for time sharing with your children, think about how these items should work for your family:

Transitions - Pick up and Drop Off - Which of you is driving? If you use school as the transition point, what happens when school is not in session?

Holidays and Special Occasions - Will these days be treated differently than the usual time sharing and have a separate schedule? Are school holidays that are not public holidays included in this part? How will both parents receive notice of special school events?

Transfer of Belongings - Will toys, clothes, backpacks and other property of the children transfer between homes (if so, how and when) or will both parents have these items? What happens if a needed item is not transferred?

Right of First Refusal - If the other parent cannot personally attend to the children in that parent’s designated time sharing period (due to illness, travel, etc), does the other parent have the right of first refusal? How long a period must it be before the right of first refusal applies - overnight, four hours, 24 hours?

Notice of Whereabouts - When does information have to be provided to the other parent if the children will not be at the usual location? When and how will the other parent be notified? This could include leaving the county, being out-of-county overnight, leaving the state, etc.

When developing your parenting plan, it is often helpful to see the proposed schedule on a calendar. There are many different software programs for dividing parenting time. One of the least expensive programs provides excellent color-coded calendars that let you see what various schedules looks like. So, for example, if the parents designate birthdays as a special occasion days in the parenting plan and everyone’s birthday is in May or June, you can see how that looks when combined with Memorial Day, Mother’s Day and Father’s Day. And, depending on your rotation schedule, holidays may not need to be designated separately when you see your regular schedule on the calendar.

So start with a model schedule to see if it meets your family’s needs. If it does not, can it be re-worked to meet them? Is there another model schedule (or re-work of one) that meets the needs of your family? If not, you will need to write down the details of how and when each parent will spend time with the children for your Florida parenting plan.

My former spouse is the primary residential parent for our children. The kids tell me they’re planning on moving to Oklahoma. Can that be done?

A: Parental relocation has been an area of substantial concern to both the courts and the legislature in Florida. Over time, a split developed in Florida’s appellate courts.

The appellate courts agreed that unless there was a residence restriction imposed on the custodial parent in the dissolution judgment, a custodial parent was free to move with the children.

However, there was a split among the appellate courts when the judgment imposed a restriction on movement of divorced parents. Some appellate courts made it difficult to move, as the it would violate terms of the final judgment by interfering with visitation rights.

Those courts found implicit restrictions against movement created by the visitation schedule for the non-custodial parent. Other courts reasoned that authorization to move should be liberally granted where the custodial parent would have improved quality of life as such would invariably improve the child’s quality of life and be in the best interest of the child.

In 1993, the Florida Supreme Court settled the dispute by adopting the more liberal approach to authorizing custodial parents relocation in the case Mize v Mize. In the Mize case, the Supreme Court adopted six criteria that had been approved in New Jersey for review of custodial parents efforts to leave Florida.

The six criteria were: Whether the move would likely improve the general quality of life for both primary residential parent and the children; whether the motive for seeking the move is for the express purpose of defeating visitation; whether the custodial parent would likely comply with substitute visitation arrangements; whether substitute visitation would be adequate to foster a continuing meaningful relationship between the child or children and the non-custodial parent; whether the cost of transportation is financially affordable by one or both parents; and whether the move is in the best interest of the child.

Florida Courts almost always approved the move with the reasoning that it would be in the best interest of the child if it were in the best interest of the custodial parent. Recently, the pendulum has occasionally swung the other way when the courts found that a substitute visitation schedule would not foster a continuing meaningful relationship between the children and the non-custodial parent, although those cases remain in the minority.

In the Mize decision, many of the Justices opined that this was really an area for legislative enactment and that the court was not the best arena to resolve these disputes. In 1997, the legislature adopted the Supreme Court’s criteria, including additional language that no presumption arose in favor or against a request to relocate if the move would materially effect the current schedule of contact in access with the secondary residential parent.

The legislature made it clear that interference with the visitation schedule set by the divorce judgment would not, of itself, prejudice the decision on relocation in either direction.

Under the new statute, courts continued their course of granting authority to move on the theory that where the custodial parent could reasonably argue improvement in quality of life for that part it would be in the best interest of the children.

Florida courts almost universally ignored the loss of contact with the non-custodial parent, finding that alternate visitation schedules such as longer visits during the summer would adequately foster a meaningful relationship between the non-custodial parent and the children.

It became increasingly clear that geographical distance between non–custodial parent and the child substantially impacts the relationship between them and the well being of the child. As such, some judges have given the request to move more scrutiny and placed greater emphasis on the disruption of visitation with the non-custodial parent would detrimentally affect the well-being of the children.

Where the final judgment did not contain an explicit restriction on movement, many custodial parents were moving without first seeking court authority. This left the non-custodial parent in a “catch up” position, often attempting to get emergency hearing time to stop or reverse the move. In 2006, Florida legislature again entered in this arena.

The new statute, effective as of Oct. 1, 2006, requires that a custodial parent wishing to relocate provide written notice to the non-custodial parent of intent to relocate, signed under oath under penalty of perjury and including: - Description of the new intended address, if known; - Mailing address of the new location, if known; - Home telephone number, of the new address, if know; - Date of the intended move; - Detailed statement of the specific reasons for the proposed relocation. If one of the reasons is based upon a written job offer, the written offer must be attached to the notice; - A proposed revised schedule of visitation, including transportation arrangements; - Notice that the non-custodial parent must file an objection to the proposed relocation with the court within 30 days after service of the notice of intent to relocate or objections are waived.

The new statute allows courts to make temporary and permanent orders, including a temporary order restraining relocation of a child or ordering return of the child if the statutory notice requirements have not been followed.

The court can also grant a temporary order permitting relocation if the court finds at hearing that it will likely grant the request and that the required notice of intent to relocate was provided in a timely manner.

The new statute also expands specific factors to be considered in determining contested relocation cases. New criteria include: - Age and developmental stage of the child, the needs of the child and the likely impact of relocation on the child’s physical, educational and emotional development; - The child’s preference, taking into consideration the age and maturity of the child; - Reasons of each parent or other person for seeking or opposing relocation; - Current employment and economic circumstances of each parent and whether or not the proposed relocation is necessary to improve the economic circumstances of the parent or the person seeking relocation; - Whether the objecting parent has fulfilled his or her financial obligations to the custodial parent; - Career and other opportunities available to the objecting parent if the relocation occurs; - Any history of substance abuse or domestic violence.

The new statute attempts to stop surprise change of residence by the primary residential parent with children. It sets forth a specific notice requirement and additional criteria for consideration by the court.

This is a complex area that appears to be in a state of change. You should retain an experienced attorney at your earliest opportunity.

By now, I’m sure there are very few Americans who have not heard of Nadya Suleman. You may not know her name, but you may know her story. She is a 33 year old, divorced mom who just gave birth to octuplets in California. The kicker is that she has six other children and they were all conceived by invitro-fertilization. I’m sure that this story has left a lot of people scratching their heads for many reasons. The questions have abounded, how she is going to be able to afford and take care of her children. There are other questions that are being raised concerning whether there should be restrictions and regulations put in place for IVF. Should you have to show a W-2 that shows you can support your children before you are allowed to go through IVF? Should there be a restriction on how many children you are allowed to have when you use IVF? While I strongly believe that having 14 children, whether that is through natural or artificial means, is socially irresponsible, I wonder whether we need to be careful with the types of restrictions we put on IVF. We tell someone you can’t use IVF because they have too many children or not enough income, do we have the same right to tell someone that they can’t have children the old fashion way because they don’t have enough money or already have too many children? My question is where do we draw the line, and have our legislatures thought about the constitutional implications on putting restrictions on IVF? With new technology comes new social and legislative challenges. Hopefully we are able to look at the big picture to insure that whatever restrictions are put in place are not over-turned for Constitutional reasons.