Stuart N. House, P.A.

How Is Pet Custody Determined?

Wednesday, August 31, 2016

Unlike Child Custody, the Answer is Predetermined

Many pet owners view their pets as part of the family, perhaps even as precious as children. When pet owners are involved in divorce proceedings, they may wonder, who gets the pet? While Florida law is clear regarding parental rights and responsibilities regarding minors, custody laws pertaining to children do not apply to pets. In the eyes of the law, pets are considered to be personal property, not unlike a piece of furniture or a painting. Like other pieces of personal property, if the property is marital, it is subject to equitable distribution pursuant to Florida Statute 61.075. If the property is non-marital, it is set aside to the spouse who acquired it as a non-marital asset.

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How Does it Work for Debra, Joe and Buddy?

  • EXAMPLE 1. Debra got her dog Buddy from the local shelter when she was a teenager, well prior to marrying Joe. She retained the documents establishing her ownership of Buddy, and all of Buddy's veterinary records have only Debra's name on them. In this scenario, it is reasonable to conclude that Buddy is Debra's non-marital asset, and should therefore remain in her possession in the event of divorce.

  • EXAMPLE 2. Debra and Joe obtained Buddy after they got married from a purveyor specializing in his particular breed. They used their joint checking account to purchase Buddy, and continued to share the expenses of caring for Buddy throughout the marriage. Legally, Buddy is marital property and subject to equitable distribution.

Obviously, a pet cannot literally be distributed like a checking account or 401K. However, a pet can be assigned a value like any other piece of personal property, and arguments can be made as to why the pet should remain in the possession of one spouse or the other. Although Florida courts do not view pet custody as they do child custody, the law does require owners to provide proper care for the domestic animals they have chosen to acquire.

'Possession' and 'Property'

Note that the words "possession" and "property" are used throughout this discussion, rather than the word "custody." This is because Florida law, and indeed the law in virtually all states, does not provide for the concept of pet custody. Neither does it provide for pet visitation or sharing arrangements. This matter is well-settled in Florida case law. In Bennett v. Bennett, a 1995 appellate case, the First District Court of Appeal made the following observation:

"While several states have given family pets special status within dissolution proceedings... we think such a course is unwise. Determinations as to custody and visitation lead to continuing enforcement and supervision problems... Our courts are overwhelmed with the supervision of custody, visitation, and support matters related to the protection of our children. We cannot undertake the same responsibility as to animals."

In view of the foregoing, responsible pet owners going through a divorce proceeding should not rely on the court to make appropriate arrangements for the residency and care of pets. In the event of a dispute as to ownership, pet owners can work with counsel to negotiate a mutually acceptable solution for the ultimate disposition of a pet.

When Do Judges Use Discretionary Powers?

Friday, August 26, 2016

While many people know that family law judges find facts, decide cases, and interpret the law, many are unfamiliar with the concept of "discretionary powers." Judicial discretion allows Florida judges to exercise judgment based on what, in their opinion, is fair under the under the given circumstances while also following the rules and principles of the law. The concept of judicial discretion has a long history in both American and English law.

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Source of Powers of Discretion

Judicial discretion is derived from several sources. Statutes often grant discretion by stating that a judge may or may not elect to do something in matters involving a particular law. However, just because a judge may exercise discretion does not necessarily mean he or she will deviate from previous rulings in similar cases. The rules of civil and criminal procedure are also teeming with examples in which a judge may exercise discretion. Certain areas of law, including family law, juvenile, and probate generally allow for greater judicial exercise of powers of discretion than others.

Child Custody Fact-Finding Missions

Judges presiding over family law cases have a fact-finding role in motion hearings, bench trials, and also as case managers in jury trials. They are permitted to exercise discretionary power in determining what evidence will be allowed, how the evidence will be considered by the judge or jury, and what remedies are available. In family law cases, judges use discretionary powers in deciding what they feel is best for the children. These powers come into play frequently in complex child custody cases.

Discretionary Powers in Evidence

Evidence that is presented at trial is subject to the broadest exercise of judicial discretion. Not only do judges determine whether evidence will be allowed or disallowed, but once these determinations are made, cases are rarely overturned based on evidentiary rulings. Therefore, choosing a Coral Springs child custody lawyer who has a great deal of knowledge and experience in presenting and arguing admissibility of evidence is of great importance.

Weighing Factors

Often, a judge may be required to weigh certain factors in making a determination. In the absence of language stating otherwise, judges are not restricted from weighing certain factors more than others. In family court matters, judges must consider that no two cases are identical; therefore, factors may be weighed differently when deciding a child or divorcing family's best interest.

Making the Most of It

While some may be frightened by the notion of judges having so much flexibility, powers of discretion also may provide an opportunity for more individuals to receive a fair, equitable outcome. For this reason, individuals who are involved in a criminal or civil case should retain a lawyer in the interest of winning pretrial motions, which generally are much more difficult to effectively appeal, and in putting their best foot forward before the court. A lawyer can personalize a case to help the court view his or her client as a human being versus simply a plaintiff or a defendant. Excellent presentation can bring a client's story to life when a judge is otherwise limited to the details that are printed on paper.

Winning Favor

In instances in which an appearance before a judge is necessary, individuals may improve their probability of success by making a positive impression on the judge. Dressing appropriately, remaining calm and reasonable, and listening intently and respectfully are basic practices that will likely influence the judge and impact his or her decision-making to an extent. For most people, the first step to understanding discretionary power and its role in the criminal or civil matters they face is to seek out a helpful attorney. Having the guidance of a knowledgeable child custody attorney in Coral Springs can ensure that individuals better understand their case and are adequately prepare for their court appearance, if necessary. Furthermore, an experienced custody lawyer can provide reliable answers to your questions in addition to explaining the concept of discretionary power, its potential impact in the case at hand, and ways in which judicial discretion may be leveraged in your favor.

What Will I Face In My Parenting Course?

Thursday, August 25, 2016

When a Coral Springs couple with children opts for divorce, the court may encourage the parents to attend parenting courses in the interest of equipping the separating couple to move forward with sharing child custody. Parenting classes generally do not focus on teaching the separating spouses to maintain a relationship with each other. Instead, these courses emphasize co-parenting, which is aimed at nurturing the relationship the child has with each parent. Though courses differ by location, the goal is to help parents in the various ways they may struggle while attempting to co-parent throughout the divorce process.

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Why a Court May Order Parenting Classes

While courts often order divorcing parents to attend courses to help them learn co-parenting skills, there are other situations in which classes may be required. If the court believes a child may be at risk when in the custody of one or both of its parents, the parent in question may be required to take classes. Examples include individuals who have been charged with abuse or neglect and those who are perceived by the court to lack general parenting skills. Courses that are intended to help parents who have been charged with child abuse or neglect typically focus on safe and age-appropriate ways of disciplining and healthy, effective anger management in addition to developing other day-to-day parenting skills. Classes that are required to be completed by both parents before the court will issue a judgment are called mandatory parenting classes. Courses that must be completed by prospective adoptive and foster parents are also mandatory classes. These courses seek to address the issues that often arise when parents are caring for a non-biological child, including disability and history of abuse or neglect.

Choosing a parenting class

When a court orders parenting classes, it will typically provide a list of approved course providers. If the court does not provide a list, parents should check with the local clerk for additional guidance prior to choosing a class. Doing so will ensure the course meets the court's requirements. Upon finishing the required classes, parents will need to submit a certificate of completion to the court. In some instances, the course provider may submit the certificate to the court on the client's behalf; therefore, class attendees should verify the course provider's policy prior to completion.

Online classes

Some jurisdictions now offer parents the option of taking classes online. Online courses are convenient for individuals who are unable to attend onsite classes or those who have major scheduling constraints. These classes may be completed privately at the attendee's desired pace; they can be accessed from virtually any computer that has an internet connection. If the court has not expressly stated that online courses are acceptable, a parent who wishes to take an online course may submit the Web address and course information to the court to determine whether the course meets the court's requirements. If the court does not approve the online course, the parent will be required to choose a different course that is acceptable to the court. Individuals may also consult their child custody and visitation attorney when choosing a course to help ensure proper compliance in accordance with Coral Springs laws.

Although some may view taking classes to be a cumbersome obstacle, court-ordered parenting courses should be viewed as a necessity for creating and growing a healthy relationship between a child and both parents. Therefore, parents should take heed if the court decides to require classes in the best interest of the children. Failure to comply with the court's orders can prolong or delay divorce proceedings or even jeopardize a parent's legal right to have custody with his or her child. Moreover, a contentious divorce or limited interaction with a parent is likely to negatively impact the child. Every loving parent wants what is best for his or her child; therefore, complying with a court order benefits the entire family.

How Do Judges Determine the Best Interest of a Child?

Monday, August 15, 2016

Updated September 2, 2017

When taking on issues that involve children, family courts are tasked with choosing the outcome that is in the affected child or children's best interest. Custody and visitation are among the most common considerations courts make along with deciding provision of healthcare, schooling, hobbies, and virtually anything that may add to or detract from the child's welfare in Coral Springs.

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Florida family law courts consider it to be within a child's best interest to have a loving relationship with both parents if doing so would not interfere with the child's health, safety and happiness. Other decisions made by the court also ideally promote the child's security, mental health, safety, physical well-being, and emotional development into adulthood.

How judges make determinations

From state to state and court to court, there is not one set of codified guidelines that help judges determine best interest in every situation. However, there are a several factors most judges consider. These factors include considering the child's happiness and preferences whenever reasonable, mental and physical health of the parents, each parent's ability to attend to any special needs the child may have, relevant cultural and/or religious considerations, continuation of stable living environment, age and gender of child, presence of abusive pattern, excessive use of discipline, drug and/or alcohol abuse, other members of the household, opportunity to interact with extended family members, and custody arrangements of siblings.

Factors judges consider in cases

States vary widely in terms of the extent to which "best interest" factors are recorded in their statutes. The following are a few examples of statutory requirements judges follow in different states in determining what is best for a child.

Approximately 21 states and Washington, D.C. have listed in statutes the specific factors local judges are required to consider when determining a child's best interest:

  • Fifteen states and Washington, D.C. weigh the emotional ties and relationships between the child and his or her parents, siblings, and other household members or caregivers.
  • Nine states require judges to evaluate each parent's capacity to provide adequate food, clothing, medical care, and a safe home for the child.
  • Eight states and the District of Columbia call for courts to weigh the child's physical and mental health needs and the physical and mental health of the parents.
  • Eight states require judges to consider the presence of domestic violence in the home.

Of the 22 jurisdictions, including Washington, D.C., that list factors in their statutes, seven states and the District of Columbia require judges to consider all of the specified factors. In the remaining 14 states courts are directed to consider all relevant factors in addition to those that are named. Three states prohibit judges from considering certain factors. Connecticut's statutes instruct judges to avoid considering the parent or caregiver's socioeconomic status when making "best interest" determinations. Delaware restricts judges from deciding one parent is a better caregiver than another based on his or her gender. Idaho prohibits discrimination based on parental disability.

State trends regarding other important factors

Florida is a state that weigh the importance of sibling and other close family bonds. Judges in Alaska must consider frequency of visitation with the parents and family members if a child is removed from the home. Florida judges consider the love, affection, and other emotional ties the child has with the parents, his or her siblings and other family members who are important in determining the child's best interest in a child custody battle. Approximately 11 states and Washington, D.C. call for the child's preferences to be considered. In these instances, the court must determine whether the child is of an age and maturity level to express reasonable preferences.

Learn more about your options by calling a Coral Springs child custody lawyer today to schedule a free consultation.