April 21th, 2013 by Robert Franklin, Esq.
Not long ago I did a piece on House Bill 231 in Florida that just passed the House of Representatives by a landslide vote of 85 – 31. If enacted into law, it would drastically alter alimony in the state, among other things putting an end to lifetime alimony. That of course was good news to ex-husbands and ex-husbands-to-be throughout the state.
But allow me to say “Oops!” Oh, I got the alimony bill right, but a couple of readers have pointed out something to me. The bill that passed also would establish a presumption of equal parenting in the Sunshine State! Those provisions are buried in half a page of the 28-page bill. Here’s how they read:
Equal time-sharing of a minor child by both parents is presumed to be in the best interests of the child unless the court finds that:
a. The safety, well-being and physical and mental and emotional health of the child would be endangered by equal time-sharing, that visitation would be presumed detrimental consistent with s. 39.0139 (3), or that supervised visitation is appropriate, if any is appropriate;
b. Clear and convincing evidence of extenuating circumstances justify a departure from equal time-sharing and the court makes written findings justifying the departure from equal time-sharing;
c. A parent is incarcerated;
d. The distance between parental residences makes equal time-sharing impracticable;
e. A parent does not request at least 50% time-sharing; or
f. There is evidence of domestic violence.
That’s the sum of the equal parenting part of House Bill 231 that overwhelmingly passed.
Now, each of those exceptions can block a father’s bid for equal time, but only the last one seems to have much utility in that regard. For example, (a) requires all items – endangerment to the safety, well-being, physical, mental and emotional health – to be found by the court in order to deny equal parenting time. That’s a very high bar to clear, to say the least.
The second exception is vague (what are “extenuating circumstances”?) in the extreme, plus it requires them to be established by clear and convincing evidence, plus it requires the judge to make written findings, something judges don’t usually like to do.
Incarceration is pretty cut and dried, although what will happen if the incarcerated parent is just about to get out of prison when the order is signed isn’t clear.
The distance between parental residences exception will encourage mothers to move away and, in other cases, is utterly subject to the discretion of the judge. I would argue that House Bill 231 clearly enunciates a legislative preference for equal parenting, so judges should err on the side of that arrangement. So if parents live too far apart to make, say, weekly handoffs practicable, maybe two-week residences with each parent would make more sense. If the parents are too far apart for one of them to get the child to school every day, then equal parenting, or close to it, can be achieved by having the child with one parent during all holidays and the summer. However it’s worked out in individual cases, judges should be aware of the strong legislative language supporting equal parenting and act to get as close to that as possible. O
f course the real weasel words are found in (f), the exception for domestic violence. Sadly, on its face, that exception allows a judge to order less than equal time-sharing if there is any evidence of domestic violence. The evidence doesn’t have to be good or even believable. It can be clearly rebutted. It can be presented for the sole reason of invoking exception (f). It can be the unsupported claim of one parent alone. As the bill is written, any of those types of “evidence” could be interpreted by a judge as invalidating a child’s right to equal time with each parent.
Needless to say, (f) gives me pause. But if I were a lawyer trying to get equal time for my client, and the other party claimed the domestic violence exception, I would argue that the legislature never intended to be as cavalier about that exception as I indicated in my previous paragraph. Again I’d point out that the obvious purpose of the bill is the presumption of equal parenting and to rebut that you have to produce real evidence of real violence. I’d point to the next section of the law that requires that the parent have been convicted of a first degree (or higher) misdemeanor domestic violence for a court to order non-shared parenting. It only makes sense to read the new section and the one following it together. Otherwise a judge would be effectively invalidating the second section of the law.
Will this bill pass the state Senate? We’ll see. But if it does, it’ll be a great leap forward for fathers’ rights to their children and children’s rights to their fathers.
Thanks to Paulette and Mike for the heads-up.
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