Welcome to the NEWSLETTER of Fisher's Law Office, providing you with legal information you can use in your everyday life. If you have questions about what you read in this newsletter, please call us today. In this issue of the Fisher's Law Office Newsletter, we discuss various legal issues revolving around children. If you have questions, don't hesitate to call or send us an e-mail today.

1. PITFALLS IN HAVING CHILDREN

More and more children in Florida are born outside marriage. There are some laws that govern such births. Florida law now allows fathers to sign an "acknowledgment of paternity" form. (See Florida Statute 742.10). Nurses will often ask fathers to sign the form when they visit the child in the hospital. The purpose of the form is to make it easier for the State of Florida to sue fathers for child support.

Under Florida Statute 742.091, if the parents of a child born out of wedlock marry, any child born before the marriage is held to be the child of the husband and the wife as though born within wedlock.

Under the same law, if you are being sued for paternity of a child and you marry the mother of the child, the court must dismiss the paternity proceeding as long as all costs and attorneys' fees are paid.

If the government pays for the birth of your child under the medicaid program, watch out. The "Family Self Sufficiency Act" (Florida Statutes, Chapter 414), states that the acceptance of public assistance, such as medicaid benefits, creates a debt of the person accepting the assistance. The debt must be paid back upon the death of the recipient of benefits. A child born on medicaid carries a debt for the rest of his life that must be paid after he dies.

Under Florida Statute 414.28, if a child is born on medicaid and later makes a gift of property during his life, the government has the right to sue the child to set aside the conveyance of property given away. Moral to the story? Never allow your child to be born on medicaid.

2. CHILD SUPPORT LAWS HAVE CHANGED DRAMATICALLY

In the past, Florida Statutes Chapter 61 required that child support be paid according to a certain set of guidelines. (See 61.30(6)). Under current law, Chapter 61 has been changed so that a judge has the discretion to lower the child support depending upon how much time the child spends with the non-custodial parent. (See Florida Statutes 61.30(11)(b)). If you are a father who spends a lot of time visiting his child, you may want to consider filing an action to reduce your child support based upon this new law.

3. FLORIDA'S CHILD SUPPORT STATUTES

In addition to requiring child support, Florida law requires that all child support orders contain a provision to provide health insurance for the child. Health insurance is only required, however, if it is reasonably available. (See Florida Statutes Chapter 61.13.)

4. CHILD SUPPORT GARNISHMENT UPDATE

Under a little known change in the law, Florida Statute 61.1824 requires that if child support is to be taken out of the paycheck of the non-custodial parent, then all payments must be made to the State of Florida Disbursement Unit, P.O. Box 8500, Tallahassee, FL 32314-8500. If your employer takes your child support out of your paycheck, make sure the employer includes the name of the county where the case is located and the case number so that you get proper credit for all child support payments made.

5. GUARANTEEING CHILD SUPPORT AWARDS THROUGH LIFE INSURANCE

Under Florida Statute 61.13(1)(c), the court is allowed to require the paying spouse to buy a life insurance policy, or post a bond, to secure the child support award in case the paying former spouse dies. The court can also order require that an unemployed former spouse seek employment. If the person can't find a job within 30 days, the court can order the person to enroll in a work experience, job placement or job training program. (See Florida Statute 61.13(e)).

6. DON'T TAKE YOUR CHILDREN OUT OF STATE WITHOUT PERMISSION.

If a child is kidnapped and taken out of State by a parent during a custody case, Florida courts have the right under Florida Statute 61.13(2)(a) to make a custody determination even though the child is missing. Taking a child out of State during a custody proceeding is a very serious matter that can cause the parent taking the child away to lose custody rights.

7. THE TREND IS FOR CUSTODY DETERMINATIONS AND CHILD SUPPORT MATTERS TO BE DETERMINED BY DOMESTIC VIOLENCE COURTS

The courts of Florida have the right in a domestic violence action to determine custody and child support matters. If you are a victim of domestic violence and you don't have enough money for a divorce lawyer, you can use the domestic violence court as a vehicle for obtaining child support for your child as well as establishing custody and visitation arrangements. Later, if you end up in divorce court, a divorce judge's orders supercede a custody order entered by a domestic violence judge. (See Florida Statute 741.30(1)).

8. THE "TENDER YEARS DOCTRINE" NO LONGER EXISTS IN FLORIDA.

The "Tender Years Doctrine" states that young children should live with their mothers without regard to a man's ability to care for the child. Florida Statutes now allow a court, "after considering all relevant facts", to give the father of a child the same consideration as a mother in determining primary residence of a baby no matter how young the baby is. (See Florida Statutes Chapter 61.13).

9. VIOLENT PEOPLE CAN LOSE THEIR RIGHTS TO CHILDREN.

If a parent has been convicted of a felony of the third degree involving domestic violence as defined by Florida Statutes Chapter 741, the court has the right to order "sole parental responsibility" instead of "shared parental responsibility". Generally, sole parental responsibility means that the non-custodial parent is not allowed to participate in decisions regarding residence of the child, religious decisions and educational decisions regarding the child. A parent whose rights are limited by a court order must still support their children.

10. RELOCATING TO ANOTHER STATE LAW HAS CHANGED DRAMATICALLY

Florida law has changed dramatically on the issue of relocation of children. (See Florida Statute 61.13). Under the current law, the court must consider the following factors before allowing a child to relocate with a custodial parent who is moving out of State:

Whether the quality of life for the child would improve.

Whether visitation rights have been allowed in the past and whether visits have occurred.

Whether the parent who moves out of State will allow substitute visitation.

Whether the substitute visitation will foster a continuing relationship between the child and the non-custodial parent.

The cost of transportation.

Whether the move is in the best interests of the child.

11. CUSTODY DECISIONS ARE BASED ON A LIST OF STATUTORY FACTORS

In Florida, the trial judge is required to consider the following when making a custody decision. The factors include, but are not limited to:

Which parent will allow the child frequent continuing contact with the other parent.

The love, affection and emotional ties between the parents and the child.

The ability of the parents to provide for the child, food, clothing, etc.

The length of time the child has lived in a stable environment.

The permanence of the family unit of the proposed custodial home.

The moral fitness of the parents.

The mental and physical health of the parents.

The school record of the child.

The reasonable preference of the child, if the court deems the child to be of sufficient intelligence to express an opinion.

The willingness of each parent to encourage a relationship with the other parent.

Evidence of providing false information regarding domestic violence.

Evidence of domestic violence.

Any other factor.

12. REFUSING TO PAY CHILD SUPPORT DOES NOT HURT VISITATION RIGHTS

Florida law is very clear. When a parent cannot pay child support, he is still allowed to visit the child. Florida law also requires that a parent pay child support even if he is denied visitation with the child. (See Florida Statute 61.13(4).

13. IN CONTEMPT HEARINGS ON VISITATION, COURTS TEND TO GRANT "MAKEUP VISITATION"

The courts traditionally give makeup visitation to a parent who has been wrongfully denied the right to see his child. Makeup visitation is normally scheduled in a manner that is consistent with the best interests of the child and that is convenient for the non-custodial parent. Courts can also require the parent who denied visitation to pay court costs and attorneys' fees, attend parenting courses, do community service and pay for transportation when the child lives more than 60 miles away from the non-custodial parent. If the denial of visitation is extreme, the court may award rotating custody or even change custody to the non-custodial parent if it is in the best interests of the child. Lastly, the court may hold a parent in contempt for not allowing court-ordered visitation.

14. "HIV" POSITIVE PARENTS CAN VISIT THEIR CHILDREN

Under a recent change in the law, a parent with AIDS may still visit his child but the court can order the visiting parent to take measures approved by the Center for Disease Control and Prevention of the United States Public Health Service for preventing the spread of HIV virus to the child.

15. SOCIAL SECURITY LAWS NUMBERS ARE NOW THE LAW

Beginning in July of 1997, the court must require parents to provide their social security number to the court along with their address, telephone number, driver's license number and the name, address and telephone number of their employer. This information is used to collect child support should the non-custodial parent fail to pay (see Florida Statute 61.13(9).

16. TAX TIP FOR 1999

If you are eligible to take an exemption for your child on your tax return, never forget the "First to File" rule.

Generally, the IRS computer will allow a deduction for a child if no one else has claimed the child and the child has a valid social security number. If you are afraid your ex-spouse will attempt to improperly claim the children on his tax return, file first! Don't be a victim of the "First to File" rule!