Florida Family Code Statute 61.13 is unconstitutional on its face: see exactly where and how
Florida Statute 61.13 is unconstitutional on many fronts. The following is the complete text of the statute with specific sections highlighted and the author’s comments embedded inline in red text. The Florida legislators need to go to work and fix this statute so that it reflects the fact that parents have rights and that those rights are individual fundamental liberty interests protected by the First and Fourteenth Amendments to the U.S. Constitution.
Our Constitution is the supreme law of our land and NO state may make any law that violates the protections afforded us in this document, as interpreted by United States Supreme Court opinions.
Your Child also has constitutional rights and this statute violates your child’s fundamental rights as well when it allows a divorce court judge to arbitrarily take away their right to equal free association with each parent and the right to equally receive the moral, religious, and civic education that their parents provide through example on a daily basis.
No family law judge can ever act in a child’s best interests when that judge deprives the child of constitutional guarantees for their fundamental rights.
There are additional statutes under the Florida Family Code that are equally unconstitutional. The shame doesn’t stop with just this section.
61.13 Support of children; parenting and time-sharing; powers of court.—
In a proceeding under this chapter, the court may at any time order either or both parents who owe a duty of support to a child to pay support to the other parent or, in the case of both parents, to a third party who has custody in accordance with the child support guidelines schedule in s. 61.30.
What this means is that at any time with or without a hearing and with or without any proof that a parent isn’t supporting their child, the court can order this. They don’t even pay lip service to due process on this one. Why let the Fourth or Fourteenth Amendment get in the way of getting the State’s federal Title IV-D kickbacks for ordering child support?
1. All child support orders and income deduction orders entered on or after October 1, 2010, must provide:
a. For child support to terminate on a child’s 18th birthday unless the court finds or previously found that s. 743.07(2) applies, or is otherwise agreed to by the parties;
b. A schedule, based on the record existing at the time of the order, stating the amount of the monthly child support obligation for all the minor children at the time of the order 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 receive child support; and
c. The month, day, and year that the reduction or termination of child support becomes effective.
2. The court initially entering an order requiring one or both parents to make child support payments has continuing jurisdiction after the entry of the initial order to modify the amount and terms and conditions of the child support payments if the modification is found by the court to be in the best interests of the child; when the child reaches majority; if there is a substantial change in the circumstances of the parties; if s. 743.07(2) applies; or when a child is emancipated, marries, joins the armed services, or dies. The court initially entering a child support order has continuing jurisdiction to require the obligee to report to the court on terms prescribed by the court regarding the disposition of the child support payments.
This appears to authorize the judge to continue charging the parent child support even after the child becomes an adult despite the fact that no parent has any duty to support an adult child because any duty imposed would violate the Thirteenth Amendment by making the parent an indentured servant to the adult child. There is NO legitimate exception to this amendment for adult children. The exception to the Thirteenth Amendment recognized by the Supreme Court is that parents being intitled to the earnings of thier minor child is not a violation of the amendment. Imposing a duty to pay an adult child is a violation.
Each order for support shall contain a provision for health insurance for the minor child when health insurance is reasonable in cost and accessible to the child. Health insurance is presumed to be reasonable in cost if the incremental cost of adding health insurance for the child or children does not exceed 5 percent of the gross income, as defined in s. 61.30, of the parent responsible for providing health insurance. Health insurance is accessible to the child if the health insurance is available to be used in the county of the child’s primary residence or in another county if the parent who has the most time under the time-sharing plan agrees. If the time-sharing plan provides for equal time-sharing, health insurance is accessible to the child if the health insurance is available to be used in either county where the child resides or in another county if both parents agree. The court may require the obligor to provide health insurance or to reimburse the obligee for the cost of health insurance for the minor child when insurance is provided by the obligee. The presumption of reasonable cost may be rebutted by evidence of any of the factors in s. 61.30(11)(a). The court may deviate from what is presumed reasonable in cost only upon a written finding explaining its determination why ordering or not ordering the provision of health insurance or the reimbursement of the obligee’s cost for providing health insurance for the minor child would be unjust or inappropriate. In any event, the court shall apportion the cost of health insurance, and any noncovered medical, dental, and prescription medication expenses of the child, to both parties by adding the cost to the basic obligation determined pursuant to s. 61.30(6). The court may order that payment of noncovered medical, dental, and prescription medication expenses of the minor child be made directly to the obligee on a percentage basis. In a proceeding for medical support only, each parent’s share of the child’s noncovered medical expenses shall equal the parent’s percentage share of the combined net income of the parents. The percentage share shall be calculated by dividing each parent’s net monthly income by the combined monthly net income of both parents. Net income is calculated as specified by s. 61.30(3) and (4).
The government is NOT permitted to mandate that parents provide health insurance for their minor children and the government cannot become entitled to this authority as a result of you or you ex making the constiuttionlanlly protected choice to never marry or to divorce. The state simply cannot place burdens on your exercise of funamental decision making rights, except where they demonstrate thier burden can survive strict scrutiny review.
1. In a non-Title IV-D case, a copy of the court order for health insurance shall be served on the obligor’s union or employer by the obligee when the following conditions are met:
a. The obligor fails to provide written proof to the obligee within 30 days after receiving effective notice of the court order that the health insurance has been obtained or that application for health insurance has been made;
b. The obligee serves written notice of intent to enforce an order for health insurance on the obligor by mail at the obligor’s last known address; and
c. The obligor fails within 15 days after the mailing of the notice to provide written proof to the obligee that the health insurance existed as of the date of mailing.
a. A support order enforced under Title IV-D of the Social Security Act which requires that the obligor provide health insurance is enforceable by the department through the use of the national medical support notice, and an amendment to the support order is not required. The department shall transfer the national medical support notice to the obligor’s union or employer. The department shall notify the obligor in writing that the notice has been sent to the obligor’s union or employer, and the written notification must include the obligor’s rights and duties under the national medical support notice. The obligor may contest the withholding required by the national medical support notice based on a mistake of fact. To contest the withholding, the obligor must file a written notice of contest with the department within 15 business days after the date the obligor receives written notification of the national medical support notice from the department. Filing with the department is complete when the notice is received by the person designated by the department in the written notification. The notice of contest must be in the form prescribed by the department. Upon the timely filing of a notice of contest, the department shall, within 5 business days, schedule an informal conference with the obligor to discuss the obligor’s factual dispute. If the informal conference resolves the dispute to the obligor’s satisfaction or if the obligor fails to attend the informal conference, the notice of contest is deemed withdrawn. If the informal conference does not resolve the dispute, the obligor may request an administrative hearing under chapter 120 within 5 business days after the termination of the informal conference, in a form and manner prescribed by the department. However, the filing of a notice of contest by the obligor does not delay the withholding of premium payments by the union, employer, or health plan administrator. The union, employer, or health plan administrator must implement the withholding as directed by the national medical support notice unless notified by the department that the national medical support notice is terminated.
b. In a Title IV-D case, the department shall notify an obligor’s union or employer if the obligation to provide health insurance through that union or employer is terminated.
Title IV-D is where the Federal Government pays the States a kickback for collecting child support without any requirement that the state act within constitutional limitations. The federal courts have an open agreement with the state courts to overlook and refuse to review any constitutional violations in family law. Title IV-D makes this arrangement look very much like a quid pro quo arrangement. This is one of the issues that drives the state to ignore your rights and award unequal custody. By awarding unequal custody it becomes easier for the state to justify awarding child support to another parent and get their cut of the Title IV-D kickback money.
3. In a non-Title IV-D case, upon receipt of the order pursuant to subparagraph 1., or upon application of the obligor pursuant to the order, the union or employer shall enroll the minor child as a beneficiary in the group health plan regardless of any restrictions on the enrollment period and withhold any required premium from the obligor’s income. If more than one plan is offered by the union or employer, the child shall be enrolled in the group health plan in which the obligor is enrolled.
a. Upon receipt of the national medical support notice under subparagraph 2. in a Title IV-D case, the union or employer shall transfer the notice to the appropriate group health plan administrator within 20 business days after the date on the notice. The plan administrator must enroll the child as a beneficiary in the group health plan regardless of any restrictions on the enrollment period, and the union or employer must withhold any required premium from the obligor’s income upon notification by the plan administrator that the child is enrolled. The child shall be enrolled in the group health plan in which the obligor is enrolled. If the group health plan in which the obligor is enrolled is not available where the child resides or if the obligor is not enrolled in group coverage, the child shall be enrolled in the lowest cost group health plan that is accessible to the child.
b. If health insurance or the obligor’s employment is terminated in a Title IV-D case, the union or employer that is withholding premiums for health insurance under a national medical support notice must notify the department within 20 days after the termination and provide the obligor’s last known address and the name and address of the obligor’s new employer, if known.
a. The amount withheld by a union or employer in compliance with a support order may not exceed the amount allowed under s. 303(b) of the Consumer Credit Protection Act, 15 U.S.C. s. 1673(b), as amended. The union or employer shall withhold the maximum allowed by the Consumer Credit Protection Act in the following order:
(I) Current support, as ordered.
(II) Premium payments for health insurance, as ordered.
(III) Past due support, as ordered.
(IV) Other medical support or insurance, as ordered.
b. If the combined amount to be withheld for current support plus the premium payment for health insurance exceed the amount allowed under the Consumer Credit Protection Act, and the health insurance cannot be obtained unless the full amount of the premium is paid, the union or employer may not withhold the premium payment. However, the union or employer shall withhold the maximum allowed in the following order:
(I) Current support, as ordered.
(II) Past due support, as ordered.
(III) Other medical support or insurance, as ordered.
6. An employer, union, or plan administrator who does not comply with the requirements in sub-subparagraph 4.a. is subject to a civil penalty not to exceed $250 for the first violation and $500 for subsequent violations, plus attorney’s fees and costs. The department may file a petition in circuit court to enforce the requirements of this subparagraph.
7. The department may adopt rules to administer the child support enforcement provisions of this section that affect Title IV-D cases.
To the extent necessary to protect an award of child support, the court may order the obligor to purchase or maintain a life insurance policy or a bond, or to otherwise secure the child support award with any other assets which may be suitable for that purpose.
1. All child support orders shall provide the full name and date of birth of each minor child who is the subject of the child support order.
2. If both parties request and the court finds that it is in the best interest of the child, support payments need not be subject to immediate income deduction. Support orders that are not subject to immediate income deduction may be directed through the depository under s. 61.181 or made payable directly to the obligee. Payments made by immediate income deduction shall be made to the State Disbursement Unit. The court shall provide a copy of the order to the depository.
Here it doesn’t even matter if the parents agree, if a sole government official disagrees. The moment one parent files for divorce, both parents lose their parental rights completely and those “rights” become subject to the mere whim of a sole government official with “broad discretion” to limit fundamental rights.”
The most essential element of fundamental rights is that they may NOT be infringed by the use of “broad discretion.” Family courts, and complicit attorneys, are laughing in the face of tormented parents by bragging about their untouchability under the quid pro quo arrangement with the federal courts. There is no hearing. There is no due process. Nobody reads you your rights.
The state simply says that filing for divorce grants the state extra-constitutional power to take over your life and subject your fundamental rights to the whim of a sole government official who has absolute immunity from suit and is protected by a quid pro quo arrangement with the federal judiciary. Every aspect of government the executive, legislative, and judicial branches of state and federal government openly conspire to discriminate against divorced and unmarried parents of minor children. They don’t even pretend to hide the corruption.
3. For support orders payable directly to the obligee, any party, or the department in a IV-D case, may subsequently file an affidavit with the depository alleging a default in payment of child support and stating that the party wishes to require that payments be made through the depository. The party shall provide copies of the affidavit to the court and to each other party. Fifteen days after receipt of the affidavit, the depository shall notify all parties that future payments shall be paid through the depository, except that income deduction payments shall be made to the State Disbursement Unit.
Here again, nothing needs to be proven. There doesn’t need to be a hearing. All it takes is for the other party to file an accusation and your rights are infringed again.
The court may approve, grant, or modify a parenting plan, notwithstanding that the child is not physically present in this state at the time of filing any proceeding under this chapter, if it appears to the court that the child was removed from this state for the primary purpose of removing the child from the court’s jurisdiction in an attempt to avoid the court’s approval, creation, or modification of a parenting plan.
A parenting plan approved by the court must, at a minimum, describe in adequate detail how the parents will share and be responsible for the daily tasks associated with the upbringing of the child; the time-sharing schedule arrangements that specify the time that the minor child will spend with each parent; a designation of who will be responsible for any and all forms of health care, school-related matters including the address to be used for school-boundary determination and registration, and other activities; and the methods and technologies that the parents will use to communicate with the child.
The court shall determine all matters relating to parenting and time-sharing of each minor child of the parties in accordance with the best interests of the child and in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act, except that modification of a parenting plan and time-sharing schedule requires a showing of a substantial, material, and unanticipated change of circumstances.
Federal law holds that fit parents determine the child’s best interest NOT the state. By what authority does the trial court refuse to apply federal law as the supremacy clause demands.
This statement is just further bragging that your parental rights and your child’s rights were completely and entirely stripped away from you the moment one of you filed suit. Federal law demands that you are entitled to an adjudication of your rights, not a child’s best interests, before the government can infringe your rights and where your rights are fundamental, the government must prove its case before it has authority to limit your rights.
There is no mention of any rights of the parents. There is nothing else required for the judge to deprive you of your fundamental parental rights other than to say “it’s in the child’s best interests.” You have no chance of winning an appeal based on best interest. The Appeals court will tell you that only the trial court can evaluate the evidence and that they will not overturn their determination unless some error that is so egregious that it can’t be hidden was made. The American Bar Association has an entire book titled the Judges Guide that tells judges how to evaluate best interest and it boils down to the judge has to attempt to predict future outcomes or in other words predict the future.
This is overly broad, arbitrary, capricious and beyond the court’s authority under the constitution. It violates substantive and procedural due process. It also violates equal protection as much more stringent requirements apply to depriving married parents of their parental rights.
Constitutional limitations on state authority are considered jurisdictional issues as they should be in evry state and as Supreme Court opinions suggest they should be. They create a constitutional bar to governmental action by removing power from government. When Congress removes authority from courts by statute, the court holds it to be jurisdictional. How can constitutonal amendments be less jurisdictional than congressional statutes? Florida Judge Scott Stephens agrees with me and apparently so does the Florida Bar who published his article on the subject back in March of 2008, Florida Statute 61.13 is Unconstitutional Challenge the code | Fix Family Courts.
This means that the custody court lacks any authority at all to limit fundamental rights until it provides all necessary constitutional guarantees to the litigants. No constitutional guarantees equals no jurisdiction. Challenge your court’s jurisdiction. When you do the judge has to prove his jurisdiction. It is his or her duty to properly establish their jurisdiction and they are required to perform this duty.
1. It is the public policy of this state that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys, of childrearing. There is no presumption for or against the father or mother of the child or for or against any specific time-sharing schedule when creating or modifying the parenting plan of the child.
Apparently, it is NOT the public policy of the State of Florida to respect the rights of parents, except that section 760.01 which states the purpose of Florida’s Civil Rights Act says that it is the public policy of the state “to promote the interests, rights, and privileges of individuals within the state.”
Apparently, just not the interests, rights, and privileges of parents in custody suits and divorce. These litigants have been classified by the Florida courts as having lessser due process rights than all other civil litigants in Florida because they committed the unforgivable sin of making lawfull and constitutionally protected choices the state of Florida disfavors.
If the State of Florida respected the fundamental liberty interests and rights of parents in divorce then the public policy of the State of Florida would say that parents have equal rights to their children unless proven unfit or to be a clear and present danger to their child. However, even if Florida’s public policy is discriminatory, federal public policy absolutely trumps state public policy where the two conflict and federal public policy holds that state court judges have a non-discretionary duty to protect the rights of litigants and it is an abuse of discretion for them to fail to do so.
The state does not presume for or against either party based on sex. That would violate the constitution. What it does instead is attempt to discriminate equally against both parents and the child. The State can’t presume that parents have rights. That would be going too far. It presumes instead the power to screw one or the other parent regardless of sex and to screw the child in every case.
There is no presumption of a time-sharing schedule because the only proper, constitutional or equitable presumption would be the equal sharing that the least restrictive means due process test demands. However, if they did that then they wouldn’t get their Title IV-D kickbacks from the federal government. After all, who is going to hold them accountable? The federal judiciary long ago agreed to overlook any and all constitutional violations in family law because they too are discriminatory against divorced parents.
What you can do is force them to admit this in the record of your case and challenge the statute directly for being applied by a government official who lacks jurisdiction and who implements the statute in a manner which violates the due process rights of a specific disfavored class of litigants who are categorized for the purpose of removing their constiutitonal guarantees.
2. The court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child. Evidence that a parent has been convicted of a misdemeanor of the first degree or higher involving domestic violence, as defined in s. 741.28 and chapter 775, or meets the criteria of s. 39.806(1)(d), creates a rebuttable presumption of detriment to the child. If the presumption is not rebutted after the convicted parent is advised by the court that the presumption exists, shared parental responsibility, including time-sharing with the child, and decisions made regarding the child, may not be granted to the convicted parent. However, the convicted parent is not relieved of any obligation to provide financial support. If the court determines that shared parental responsibility would be detrimental to the child, it may order sole parental responsibility and make such arrangements for time-sharing as specified in the parenting plan as will best protect the child or abused spouse from further harm. Whether or not there is a conviction of any offense of domestic violence or child abuse or the existence of an injunction for protection against domestic violence, the court shall consider evidence of domestic violence or child abuse as evidence of detriment to the child.
What constitutes a detriment to the child? Anything the judge chooses. In legal terms this is called unbridled discretion to violate fundamental rights and there is no context in which this is the least bit lawful, unless that broad power is expressly granted in the constitution, which it is not.
The court shall consider any evidence of domestic violence or child abuse as evidence of detriment to the child. What ever happened to innocent until proven guilty? Evidence in family court is nothing more than an accusation from you soon to be ex who stands to gain financially from the accusation. You can be deprived of a fundamental liberty interest through nothing more than an accusation.
What is very important from a due process perspective is that when a court applies this part of the statute, the court changes the nature of the proceedings from civil and remedial to criminal and punitive. The Court has clearly heald that “Any deprivation or suspension of rights [civil or political, previously enjoyed] for past conduct is punishment, and can in no otherwise defined.”
If your attorney does not immediatly demand punitive level due process when this section of the statute is invoked by a judge, then you need to make them. If they refuse, drop them, in writing, for violation of thier fiduciary duty to protect your rights and find another who will object properly. If it were me, I would dismiss them in open court and state violation of fiduciary duty as the justification. This is a sideways way to get your obection on the record.
a. In ordering shared parental responsibility, the court may consider the expressed desires of the parents and may grant to one party the ultimate responsibility over specific aspects of the child’s welfare or may divide those responsibilities between the parties based on the best interests of the child. Areas of responsibility may include education, health care, and any other responsibilities that the court finds unique to a particular family.
It is nice of the state to say that the court “may” consider the expressed desires of the parents but the Supreme Court has stated that the Court MUST at the minimum show special deference to the desires of fit parents and that the judge’s viewpoint of what is best for the child cannot justify violation of fundamental parental rights.
Your desires are NOT just desires under federal law. They are constitutionally protected privacy choices, the same right that protects the choice to have an abortion, and they must be protected at the same level of due process as that right is. If the desires of the parents are framed as private family decisions then the Court must prove a compelling interest and produce a result that is least restrictive to the rights involved.
b. The court shall order sole parental responsibility for a minor child to one parent, with or without time-sharing with the other parent if it is in the best interests of the minor child.
Once again the court has no jurisdiction in the face of fit parents to determine best interests. The court cannot order sole parental responsibility without terminating the rights of the other parent. You entered the proceedings with full and equal rights. If you leave with less rights then your rights have been violated. There is no way around this for the court, but you must make this a central issue of your case if you want the protections.
The moment one parent files for divorce, one parent loses their parental rights completely. There is no due process. Nobody reads you your rights. The state simply says that filing for divorce grants the state extra-constitutional power to take over your life. There is no context in law where this is even the least bit lawful or constitutional.
3. Access to records and information pertaining to a minor child, including, but not limited to, medical, dental, and school records, may not be denied to either parent. Full rights under this subparagraph apply to either parent unless a court order specifically revokes these rights, including any restrictions on these rights as provided in a domestic violence injunction. A parent having rights under this subparagraph has the same rights upon request as to form, substance, and manner of access as are available to the other parent of a child, including, without limitation, the right to in-person communication with medical, dental, and education providers.
The circuit court in the county in which either parent and the child reside or the circuit court in which the original order approving or creating the parenting plan was entered may modify the parenting plan. The court may change the venue in accordance with s. 47.122.
For purposes of establishing or modifying parental responsibility and creating, developing, approving, or modifying a parenting plan, including a time-sharing schedule, which governs each parent’s relationship with his or her minor child and the relationship between each parent with regard to his or her minor child, the best interest of the child shall be the primary consideration. A determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child. Determination of the best interests of the child shall be made by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family, including, but not limited to:
The parent-child relationship is better articulated as an intimate and expressive, close family, parent-child association protected in both forms by the First Amendment as well as the Fourteenth Amendment. The Supreme Court has specificlally held that “the First Amendment protects family relationships.” Your attorney has a duty to know this and a duty to object to any judge attempting to place prior limits on your First Amendment rights based solely upon that judge’s viewpoint regarding your child’s best interests because viewpoint discrimination against First Amendment protected rights is presumptively unconstitutional and the Court has never yet upheld any such prior restraint.
By making the best interests of the child the primary consideration and taking away the right to determine best interests of the child from fit parents, this statute violates the Fourteenth Amendment due process clause by inappropriately depriving parents of their right to determine best interests of their children and by unconstitutionally depriving fit parents of their children.
Every item in this section below is a violation of equal protection as it holds divorced parents to a higher standard of child care to receive or retain their rights than is required of married or single never divorced parents. The Supreme Court has stated that the standard for determining a parent’s fitness is meeting the minimum reasonable needs of the child. This list goes way beyond that minimum standard and constitutes an enhanced standard applied to divorced parents, a violation of equal protection.
The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required.
The Constitution demands that parents be presumed to be fit and that fit parents be presumed to be acting in their child’s best interest as the civil family law equivilent to the criminal standard of innocent until proven guilty.
There is NO context in law where any individual carries the burden of proving that thier fundamental rights must be protected. The very nature of fundamental rights is that the government carries the burden of justifying ANY infringement of the right. This clause impermissibly shifts the burden of proof from the government onto the litigant and should be objected to as such.
The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.
Married parents are free to use third parties to care for their children, at will, without losing their rights or being required to seek license from the government. They can send their child to boarding school and not be punished as bad parents. Divorced parents by contrast are measured by their personal one-on-one time with their children which is a violation of equal protection.
Further, if the state values the one-on-one time so highly, then it must justify depriving it from a parent to the same standard it applies in this clause. This is just more of the same double standards applied to divorced parents that so blatently violate the equal protection clause.
The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent.
So long as a parent meets the minimum reasonable needs of the child that parent is free to put other needs above those of the child, even their own. This is the standard set by the Supreme Court of the United States. What authority does the Florida legislature claim, other than the federal judiciary’s and Florida judiciary’s quid pro quo protection racket?
The discrimination against divorced parents is on the same level as discrimination against Blacks and Women by the state and federal courts of years past. It is an open agreement by state and federal overnmetn officials to trash the constitution where it protects the rights of this class of person. It is blatantly open discrimination against a class of people who do nothing more than exercise thier constituonal rights in a manner the government disfavors.
The entire point of rights is that you can exercise them regardless of how badly the government may hate the choices you make. Otherwise, they arent’ rights, you simply have governmet granted permission because you are the favored class.
The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
Continuity and a stable environment is not a universally agreed benefit for the child. Some parents may believe that children benefit from moving often and experiencing many different environments. Their beliefs are excluded under this requirement.
Nowhere, in the constitution nor in any federal appellate opinion has there ever been articulated a constitutional right of the child to stability and continuity as against the parent’s constitutional right to make chices for the child. Evern if there were, continuity and a stable environment cannot be compelling justification unless the government applies that standard to all children regardless of the marrital association between the child’s parents
The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of either parent with a child.
The moral fitness of the parents.
A divorce cannot be an acceptable constitutional trigger to subject parents to a parental fitness test. Parents must be assumed to be fit unless the State with appropriate due process proves the parents to be unfit. No divorce proceeding meets the required level of due process to find a parent unfit.
Here the Florida legislature is directing the judge to directly challenge the parent’s fitness as a parent without serving any written charges against the parent, without affording the parent a hearing in which to confront those charges, without allowing the parent to confront theri accuse, the judge who is supposed to be neutral and impartial, and without affording the parent an opportunity to confront their accuser. Here, the judge is the state’s prosecutor and the judge, a condition which deprives the judge of the prerequisite of neutrality and impartiality.
Object to this clause on the grounds listed above and move for dismissal of the judge on grounds of bias if the judge rfuses to invalidate this clause.
The mental and physical health of the parents.
This is an invasion of the personal medical privacy of each parent. The State has no business knowing this information or forcing the parents to provide this information as a condition to retain their parental rights. Requiring parents to provide this information without a warrant is a Fourth Amendment violation and forcing a parent to testify regarding this information is a Fifth Amendment violation. Parents cannot be forced to testify regarding things that will be used to deprive them of a fundamental liberty interest. These privacy rights are fundamental and invasions of this privacy is reviewed at a strict scrutiny level.
Further, where the judge is personally investigating the child’s best interests, the judge is insufficently neutral and unbiased to issue search warrants of this type under the Fourthy Amendment.
The quintisential element of the warrant requirement is to build a wall of separation between the investigator and the decision-maker. This violation isn’t avoided at all when the judge issues the warrant to a GAL or ad litem who serves the judge’s purposes in investigating best interest.
The home, school, and community record of the child.
This criteria and all of these criteria are nothing more than considerations to be used in formulating a viewpoint. They cannot protect the statute against constitutonal review because the constitution doesn’t care if the viewpoint is based on a single criterial or ten thousand criteria, for it is the viewpoint itself that is the impermissible element.
The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
Children do NOT have a right to pick and choose a parent. Until they have reached the age of majority they cannot sign contracts because they do not have the capacity or experience to understand what they are getting into. Teenagers are particularly vulnerable to life altering choices during a period when their brains are going through dramatic physical changes that have been scientifically shown to limit their capacity to accurately predict risk and control certain behavior. Allowing a child to choose is denying one parent the right to protect their child during this period and sets up a situation where one parent allows the child to be exposed to too much risk as an enticement away from the other parent.
Further, it is an unmitigated evil perpetrated against the child by a judge because no matter what any judge may tell the child to the contrary, that child will suffer the guilt of that choice for the rest of their life.
We hae a sample motion called a Motion in Limine which is a type of motion designed to prevent any testimony regarding unconstitutional matters. We highly recommend that you have your attorney file a motion in limine against every single one of these criteria on constitutional grounds in conjunction with seeking declaratory relief against the statute itself.
The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to, the child’s friends, teachers, medical care providers, daily activities, and favorite things.
So there is a mental capability test that is applied to divorced parents but no other parents. This is an equal protection violation on top of the due process violations of service, confrontation, and cross-examination mentioned above.
The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, and daily schedules for homework, meals, and bedtime.
This presupposes that a consistent routine is the only proper way to raise a child. Perhaps a parent believes that less consistency is better for fostering creativity in their children but since they are in the minority their rights are subordinate to the majority. This is nothing more than a social experiment by the state that seems to be designed to create consistent little robots who do what they are told and don’t cause trouble for those in power. Equal protection violation.
The state is deliberately attempting to standardize children against the Supreme Court’s specific holding that the state may not standardize children.
The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child.
People get divorced because they can no longer communicate and because they don’t agree on things. This would have agreement of the parents as a requirement to retain rights. Married parents often do not agree and do not adopt a unified front and do not lose their rights. This is a situation where divorced parents are held to the legislature’s ideal standard and married parents are held to a minimum standard. Equal protection violation.
You must have your attorney object that the state is denying you athe right to disagree on matters of conscience in child-rearing and is compelling you to speak in ways which you disagree in violation of your First Amendment rights. Why? Because First Amendmetn rights are strictly enforced against state action even where children are concerned.
Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect, regardless of whether a prior or pending action relating to those issues has been brought. If the court accepts evidence of prior or pending actions regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect, the court must specifically acknowledge in writing that such evidence was considered when evaluating the best interests of the child.
This one sounds like it possibly might not be a bad thing, but once again, it is an example of a double standard. This bypasses all required due process that is in place to protect married parents. In this country, you are innocent until proven guilty unless you are going through divorce, in which case the state believes it can take your rights without any proof.
This is why parents make false allegations. Judges have no one but themselves to blame. No proof is required and there are few if any consequences for lying. Judges know better. Shame on any judge who does this, shame.
Evidence that either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect.
Here is one of the subtle ways in which the state discriminates. For all other litigants, the state must adjudicate any such charges and prove them in a full confrontational hearing before they can be used as justifiction to limit a fundamental right. In family law, modern day witch trials, a mere accusation with trumpted up evidence that is never subjected to cross-examination is all that is required. Neither the due process nor the equal protection clauses tolorate this kind of prosecution when it is subjected to true constitutional review.
The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties.
This constitutes an infringement on the parent’s rights to make fundamental parenting and family decisions.
A parent may make very different decisions while married than they would when single. A married parent might choose to work more and the other parent be home raising the child based on their belief that their loving partner is teaching the children a shared set of values. But when the marriage breaks down and the parents become adversaries, those same parents have a right to choose differently.
A divorced father may choose to work less and spend more time with his child, or to place the child with a different person while he is working during his half of their time so the child is exposed to the person and the attitude he approves of and not by a person that is now his adversary. This is each parents’ right, to be able to decide how their child is raised during their equal time, and a First Amendment protected right that this statute violates. The same parent will make a very different decision when faced with the reality that their partner’s values are very different than they believed and when faced with the reality that they have to directly teach their values to their children.
This is an invasion by the state into the very fabric of the First Amendment protected right to family privacy post-divorce that directly burdens a parent’s fundamental right to make private family decisions.
The demonstrated capacity and disposition of each parent to participate and be involved in the child’s school and extracurricular activities.
If you can’t hold married parents to this standard then you can’t hold divorced parents to this standard, equal protection violation.
The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse.
While this is a noble aim, the state can’t use substance abuse alone to take children from married parents. The State MUST prove clear and present danger and then prove a parent unfit before they can deny care, custody, or control, equal protection violation. Just as the state cannot take a child away from a parent just because they drink some alcohol, they should not be able to take the child from a parent that does an illegal drug outside the presence of the child, and without demonstrating that the parent was unable to provide for or care for the basic needs of the child – the same as a married person.
The state has well developed and regularly used processes for proving parental neglect under appropriate due process standards, the the equal protection clause does not permit a separate lesser standard for this class of parent, without that classification surviving strict scrutiny constitutional review.
The capacity and disposition of each parent to protect the child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child.
This prior restraint on speech is clearly over broad in the face of infringing on the First Amendment rights of parents. The Court may not like what the parents discuss with their children but they cannot, except within very strict limits, limit the speech of parents based on the content of that speech. This makes no allowance for the different age levels or maturity levels of the children. It is the parent’s decision what they say to their children under laws which must be equally applicable to married and single parents alike. Different sets of rules for divorcing parents are impermissible under the equal protection clause. If the State is prohibited from restraining married parents from making disparaging comments about the other parent then the state can’t do so to divorcing parents.
One thing I haven’t stressed enough is that, your rights as a parent are INDIVIDUAL rights. They don’t come from marriage and therefore ending the marriage cannot be a legitimate justification for taking the rights away. Everything in this statute scremes 19th century beliefs regarding marriage and child-rearing. The same beliefs that underpinned the bastardy laws. This statue is no different than any of this state’s previous bastardy codes. It presumes state authority to discriminate against parents and childrend based upon nothing more than the marital status of the child’s parents to each other, or a change in that status.
The bastardy codes were evil, and this statue is evil just the same for just the same reasons.
The State allows children of certain ages to make decisions about having an abortion without notifying their parents. Those same children can handle some age appropriate discussion of the obscene behavior of our family court system, if for no other reason than to explain why the parent is so stressed, upset, and broke. Maybe the child needs to know that her parents can’t afford her college tuition because they gave it all to attorneys who refused to protect their parent’s constitutional rights. Maybe the child needs to know why her parents became so passionate about changing the family law system. Maybe she needs to know the hell the parent went through to remain a parent in her life. The parents have a First Amendment right to communicate this valuable information and the child has a First Amendment right to receive this information.
The child absolutely needs to know exactly how corrupt family law judges have become so that she can protect herself from their evil when she has children.
The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs.
The standard is the minimum reasonable needs of the child as the Supreme Court has already articulated. The Constitution doesn’t say that the rights of the “better” parents are protected. The Constitution says that the rights of all parents able to meet the minimum reasonable needs of the child are protected.
Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.
This one is the definition of a statute that is overly broad, that is overreaching, that is arbitrary, and that is capricious. It translates into anything the judge wants to use against a parent because they don’t like the way the parent looks, or the way they practice their religion, or the fact that they are a Democrat or a Republican.
This clause can literally be translated as, punish them for anything you want judge because they are a disfavored class who deserve no consitutional guarantees whatsoever.
This section 4 is actually good and should be kept. States enforce and provide criminal penalties for individuals who violate the rights of others in every other area. I believe that there should be criminal penalties associated with violating custody or time-sharing orders.
When a parent who is ordered to pay child support or alimony fails to pay child support or alimony, the parent who should have received the child support or alimony may not refuse to honor the time-sharing schedule presently in effect between the parents.
When a parent refuses to honor the other parent’s rights under the time-sharing schedule, the parent whose time-sharing rights were violated shall continue to pay any ordered child support or alimony.
I actually support this clause, PROVIDED, that parents are properly adjudicated to have failed to directly care for thier child to minimum reasonable standards before being compelled to pay child support and even then, the amount ordered should not be more than the reasonal minimum standard of care.
No child has a right to a percentage of thir parent’s income, not a single one.
Children are entitled to minimum reasonable standards of care and no more.
Any care provided beyond the minimum standard, is discretionary care that can be provided or denied for any lawful reason by a parent. To the degree that the care provided is intended to ehnance that parent’s speech or parental authority, that discretion of care is protected by the First Amendment as speech.
When a parent refuses to honor the time-sharing schedule in the parenting plan without proper cause, the court:
1. Shall, after calculating the amount of time-sharing improperly denied, award the parent denied time a sufficient amount of extra time-sharing to compensate for the time-sharing missed, and such time-sharing shall be ordered as expeditiously as possible in a manner consistent with the best interests of the child and scheduled in a manner that is convenient for the parent deprived of time-sharing. In ordering any makeup time-sharing, the court shall schedule such time-sharing in a manner that is consistent with the best interests of the child or children and that is convenient for the nonoffending parent and at the expense of the noncompliant parent.
2. May order the parent who did not provide time-sharing or did not properly exercise time-sharing under the time-sharing schedule to pay reasonable court costs and attorney’s fees incurred by the nonoffending parent to enforce the time-sharing schedule.
3. May order the parent who did not provide time-sharing or did not properly exercise time-sharing under the time-sharing schedule to attend a parenting course approved by the judicial circuit.
4. May order the parent who did not provide time-sharing or did not properly exercise time-sharing under the time-sharing schedule to do community service if the order will not interfere with the welfare of the child.
5. May order the parent who did not provide time-sharing or did not properly exercise time-sharing under the time-sharing schedule to have the financial burden of promoting frequent and continuing contact when that parent and child reside further than 60 miles from the other parent.
6. May, upon the request of the parent who did not violate the time-sharing schedule, modify the parenting plan if modification is in the best interests of the child.
7. May impose any other reasonable sanction as a result of noncompliance.
A person who violates this subsection may be punished by contempt of court or other remedies as the court deems appropriate.
The court may make specific orders regarding the parenting plan and time-sharing schedule as such orders relate to the circumstances of the parties and the nature of the case and are equitable and provide for child support in accordance with the guidelines schedule in s. 61.30. An order for equal time-sharing for a minor child does not preclude the court from entering an order for child support of the child.
I love how they constantly use the term equitable in reference to child custody. The short definition of equity is basic fairness, although attorneys can write books on the legal implications of this term. There is nothing fair about depriving either parent of their fundamental liberties on nothing more than a judge’s whim. If you read this one closely you see that it boils down to “the court can make almost any orders it likes as long as it pays lip service to the guidelines which by the way also boil down to anything the judge likes.” There is nothing equitable about this. It is overly broad. It is arbitrary and it is capricious.
Don’t permit the judge or your attorney to convince you that judges acting purely under equity are permitted to violate the constitution. The Supreme Court has clearly held that equitable exercises of judicial power are state action protected by the constitution.
The Supreme Court of the United States has specifically held in a child custody modification case that the trial court judge in that case is undeniably a state actor subject to constituitonal limitations and that the trial court judge’s best interest of the child determination is subject to constitutional review as a substial, NOT a compelling governmental interest.
See our book: Oath Breakers: Lies FamilyCourts Tell ofr extensive analysis of the State Action Doctrine and for specific review of the Supreme Court case with these holdings.
What this means is that your judge cannot possibly issue any prior restraints of any kind that are justified soley on his or her viewpont of your child’s best interest.
A parenting plan is undeniably a prior restraint on the times, the places, and the manner in which a parent may speak with, associate with, worship with, and share family privacy with their minor child that impermissibly restrains the rights of parent and child alike.
Such prior restraints cannot be justified by the judge’s mere viewpoint regarding your child’s best interest because viewpoint based prior restraints are presumptively unconstituional and demand compelling justification under the nearly non-existent circumstances in which they may be permitted.
In any proceeding under this section, the court may not deny shared parental responsibility and time-sharing rights to a parent solely because that parent is or is believed to be infected with human immunodeficiency virus, but the court may, in an order approving the parenting plan, require that parent to observe measures approved by the Centers for Disease Control and Prevention of the United States Public Health Service or by the Department of Health for preventing the spread of human immunodeficiency virus to the child.
Yea great. It sucks if you have AIDS, no doubt. But even this won’t protect you because the court can use any other excuse it wants which makes this clause meaningless to anybody. The judge can still take your child if he believes you are ugly, or blonde, or you look like his ex-wife. What is to stop him? Certainly, nothing in this statute limits the judge’s authority in any meaningful way.
Each party to any paternity or support proceeding is required to file with the tribunal as defined in s. 88.1011(22) and State Case Registry upon entry of an order, and to update as appropriate, information on location and identity of the party, including social security number, residential and mailing addresses, telephone number, driver’s license number, and name, address, and telephone number of employer. Each party to any paternity or child support proceeding in a non-Title IV-D case shall meet the above requirements for updating the tribunal and State Case Registry.
Pursuant to the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996, each party is required to provide his or her social security number in accordance with this section. Disclosure of social security numbers obtained through this requirement shall be limited to the purpose of administration of the Title IV-D program for child support enforcement.
In any subsequent Title IV-D child support enforcement action between the parties, upon sufficient showing that diligent effort has been made to ascertain the location of such a party, the court of competent jurisdiction shall deem state due process requirements for notice and service of process to be met with respect to the party, upon delivery of written notice to the most recent residential or employer address filed with the tribunal and State Case Registry pursuant to paragraph (a). In any subsequent non-Title IV-D child support enforcement action between the parties, the same requirements for service shall apply.
This is where the Federal Government gets into the act. The State gets paid based on how many parents pay child support. To justify this the Courts generally award unequal custody and make one parent pay the other. This is how they get their payment from the Federal Government.
At the time an order for child support is entered, each party is required to provide his or her social security number and date of birth to the court, as well as the name, date of birth, and social security number of each minor child that is the subject of such child support order. Pursuant to the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996, each party is required to provide his or her social security number in accordance with this section. All social security numbers required by this section shall be provided by the parties and maintained by the depository as a separate attachment in the file. Disclosure of social security numbers obtained through this requirement shall be limited to the purpose of administration of the Title IV-D program for child support enforcement.
History.—s. 7, Oct. 31, 1828; RS 1489; GS 1938; RGS 3201; CGL 4993; s. 16, ch. 67-254; s. 15, ch. 71-241; s. 1, ch. 75-67; s. 1, ch. 75-99; s. 26, ch. 77-433; s. 1, ch. 78-5; s. 18, ch. 79-164; ss. 1, 4, ch. 82-96; s. 3, ch. 84-110; s. 1, ch. 84-152; s. 118, ch. 86-220; s. 1, ch. 87-95; s. 4, ch. 88-176; s. 1, ch. 89-183; s. 1, ch. 89-350; s. 4, ch. 91-246; s. 4, ch. 93-188; s. 1, ch. 93-208; s. 1, ch. 93-236; s. 9, ch. 94-134; s. 9, ch. 94-135; s. 14, ch. 95-222; s. 5, ch. 96-183; s. 2, ch. 96-305; s. 24, ch. 97-95; s. 3, ch. 97-155; s. 3, ch. 97-170; s. 4, ch. 97-226; s. 1, ch. 97-242; s. 8, ch. 98-397; s. 122, ch. 98-403; s. 3, ch. 99-8; s. 2, ch. 99-375; s. 7, ch. 2000-151; s. 1, ch. 2001-2; s. 4, ch. 2001-158; s. 3, ch. 2002-65; s. 2, ch. 2002-173; s. 2, ch. 2003-5; s. 2, ch. 2004-334; s. 1, ch. 2005-39; s. 1, ch. 2005-82; s. 7, ch. 2005-239; s. 1, ch. 2006-245; s. 8, ch. 2008-61; s. 2, ch. 2009-90; s. 3, ch. 2009-180; s. 1, ch. 2010-187; s. 3, ch. 2010-199; s. 76, ch. 2011-92.
1Note.—Section 81, ch. 2011-92, provides that “[e]xcept as otherwise expressly provided in this act, this act shall take effect upon the earlier of 90 days following Congress amending 42 U.S.C. s. 666(f) to allow or require states to adopt the 2008 version of the Uniform Interstate Family Support Act, or 90 days following the state obtaining a waiver of its state plan requirement under Title IV-D of the Social Security Act.” Section 76, ch. 2011-92, amended paragraph (7)(a), to read:
“(a) Each party to any paternity or support proceeding is required to file with the tribunal as defined in s. 88.1011 and State Case Registry upon entry of an order, and to update as appropriate, information on location and identity of the party, including social security number, residential and mailing addresses, telephone number, driver’s license number, and name, address, and telephone number of employer. Each party to any paternity or child support proceeding in a non-Title IV-D case shall meet the above requirements for updating the tribunal and State Case Registry.Note.—Former s. 65.14.Read additional commentary by this author on this statute in this article, Do Florida divorce and child custody laws violate the U.S. Constitution?