Analysis of Florida Law

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Florida’s system for divorce, Shared Parental Responsibility, contains one crucial flaw in the basis of its design – it assumes that couples who parent children are going to get along following separation in order to serve the best interests of their children. This idealistic approach has clearly failed to accomplish even the basic purposes of Chapter 61 of the Florida Statutes:

to safeguard meaningful family relationships;

to promote the amicable settlement of divorce disputes; and,

to lessen potential harm to spouses and children caused by the legal dissolution of marriage.

First, shared parental responsibility awards custody or residential responsibility to one parent, while limiting the non-custodial parent to minimal and meaningless visitation, visitation that is not even enforceable. Typical visitation for the non-custodial parent amounts to less than 15% of the time with the children. No parent can be a positive influence nor have a meaningful relationship with his/her children given that small amount of time. More importantly, by essentially removing one parent from the day-to-day lives of the children, this practice is in large part responsible for the many problems seen today in Florida’s children of divorce. Research has shown in great detail that the best way to help children cope with divorce is to assure that both parents maintain a meaningful relationship with the children. Visitation in the amount currently dictated by the courts is simply unacceptable. Florida would benefit from the creation of a system where the total needs of the children are met, not only the financial needs.

Second, the shared parental responsibility arrangement is a winner-take-all system. Battles to be named the custodial parent cause needless confrontation, excess legal expense and civil courts consumed with unnecessary divorce and modification hearings. Instead of promoting amicable settlement of divorce disputes, the laws currently in place thrust the participants, including the children, into a legal tug-of-war, compounding the very disputes the laws are intended to preclude. What’s worse, the legal system promotes such conflict, actually thrives on it. In many cases, false charges of abuse and unnecessary restraining orders are filed simply to smear the opponent, with no requirement that the charges ever be proven. The system of divorce as currently practiced in this state is the furthest thing from amicable and unnecessarily so.

Third, current divorce law assumes that all costs of child rearing are borne by the custodial parent, thereby imposing extraordinary and unfair child support obligations on the non-custodial parent. Parents are required to pay for their share of the entire month’s expenses, without regard for the financial obligations they endure while caring for the children or their living conditions. In addition, there are no requirements that the child support paid to the custodial parent even be accounted for. The money is, in many cases, used for expenses unrelated to the children. Furthermore, the courts impose medical, dental and life insurance requirements on non-custodial parents that would never be levied on married couples. These factors, coupled with the minimal and un-enforceable visitation adhered to by the courts, are the main reasons Florida experiences a child support non-compliance problem that places it 49th in the nation. Research shows that people support their children if simply treated as equals in a divorce – less than 10% of parents ordered to pay child support and/or alimony are delinquent with payment in cases where joint custody is awarded. There would be no need for a child support enforcement effort in Florida if compliance were anywhere near 90%. Florida’s poorly designed child support guidelines have a definite negative effect on compliance.

Fourth, Florida courts have an enormous problem with the uniform enforcement of their divorce decrees. Most court orders contain fifteen, twenty, sometimes twenty-five paragraphs defining contact and visitation between non-custodial parents and their children.

Unfortunately, the courts typically do not enforce these portions of their own orders.

In contrast, should the non-custodial parent fail to meet the child support obligation specified in one paragraph of the same court order, for whatever reason, the person in violation is threatened with jail and loss of his/her driver’s license, not to mention loss of employment due to these two actions. To us, there is no reason for this obvious inequity.

Florida law should demand that the courts enforce orders in their entirety or not at all. There can be no in-between. People are less likely to comply with court orders that are not enforced equitably.

Fifth, experience has shown us that many custodial parents move out-of-state for no other reason except to remove the children from the non-custodial parent or to move closer to their own family. Although the Supreme Court has supported a parent’s right to move out-of-state for the purpose of employment, there is a difference between a required move and a move intended to be vindictive.

Moreover, the courts require that every divorce decree assert that jurisdiction will be retained by the State of Florida. How can Florida retain jurisdiction over the dissolution of marriage if the custodial parent and the children are allowed to move to another state? Furthermore, many custodial parents remove the children from the state without so much as a court order or a hearing and the courts are reluctant to do anything about it. If a non-custodial parent can be pursued across state lines for the purpose of recovering child support payments, surely a custodial parent can be brought back to Florida for a fair hearing regarding a relocation involving the children.

Sixth, as stated above, the way in which divorce is practiced in Florida leads to courts that are overwhelmed with petitions, motions, hearings and the like. As a result, many people experience situations where this ineffectiveness and inefficiency of the courts actually compounds their problems. Parents are separated from their children for months while they wait for an initial visitation hearing to be scheduled. They get threatened with jail by the Child Support Enforcement bureaucrats long before they ever get a hearing to explain a job loss. They are barred from presenting information in support of their case, for expediency’s sake.

We believe that this complexity of the legal process is unnecessary, created for the sake of expanding the legal business rather than for reasons rooted in common sense. There is no need to continue a process where mountains of paperwork are filed with the courts, only to be ignored in the rendering of a decision. Divorce must not be allowed to continue as the basis of a lucrative legal business. It starts by simplifying the process and treating people fairly. For those who look objectively at how divorce is handled in Florida, it is not difficult to see that the law, as currently applied, does not fulfill even the basic goals of the statutes as specified in Chapter 61.

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