The Marks Law Firm Blog and New Updates

Protecting Individuals with Mental and Physical Disabilities in the Family Court System

In the family law arena, we often encounter individuals with physical or mental disabilities. The Court has implemented various safeguards for these persons in order to assure that they have fair and equal access to the justice system.

 

For children whose best interest may be unclear due to the current dissolution proceedings of their parents or if the parents disagree as to the child’s best interest, a Court may appoint, or the parties may hire, a Guardian Ad Litem (GAL).

The GAL’s primary duty is to advocate for the best interest of the child. This is particularly helpful in high conflict scenarios or situations where the child has a mental, developmental, or physical disability. If an adult has a mental or physical disability that impairs their judgment as it relates to their particular case, a GAL may also be hired to advocate for this individual’s best interest.

Children and adults with mental and physical disabilities can seek help and treatment from the State of Florida. Agency for Persons with Disabilities (APD) is the state agency that provides an array of services for individuals with developmental disabilities.

Some of APD’s services include occupational and physical therapy, mental health services, and behavior therapy. APD’s goal is to make the individual with the disability as independent as possible. There are particular steps necessary to quality for APD’s services. For more information please visit the following website: www.apdcares.org.

It is important to remember that persons with mental or physical disabilities deserve the same opportunities within our court system as do those without such hindrances. Please contact our office for more information on how you can protect those who are limited in their ability to protect themselves.

Honoring those in Service: Amendments to the Statute regarding Timesharing for Men and Women in the Military

Determining the appropriate time sharing when a parent is in the military has been a long- standing issue due to deployment, re-assignment to a new base and other variables.

Florida Statue 61.13002 allows a parent who is activated, deployed, or temporarily assigned to military service on orders in excess of 90 days and whose ability to comply with time-sharing is materially affected to designate a person(s) to exercise time-sharing on that parent’s behalf.  The designation is restricted to a family member, stepparent or relative of the child by marriage.

The designation must be in writing to the civilian parent at least 10 days prior to the next time-sharing.  If the parties are unable to agree on the designation, then either party can request an expedited hearing to determine the designation.  Agreements on designation may be made at time of dissolution of marriage or during other child-related proceedings.

The statute further provides that in any hearing enforcing rights under F.S. 61.13002, the court shall permit the military parent to testify by telephone, video teleconference, webcam, affidavit, or other means if the military duties have a material effect on that parent’s ability or anticipated ability to appear in person.

Who Gets to Claim our Child as Dependent During our Divorce?

Many dissolution and paternity agreements and/or orders include a provision allowing a specified parent to claim a child.  Form 8332, available on the IRS website should be filled out every year where one spouse is entitled to take the dependency exemption.

The form essentially transfers the exemption from one parent to the other as long as certain conditions are met, such as child support is current.  According to IRS chief counsel advice memo issued on June 19, 2009, for judgments or decrees after July 2, 2008, attaching a copy of the decree that transfers the exemption to a non-custodial parent will not suffice to transfer the dependency exemption.

A document that conforms to the substance of Form 8332 will suffice as long as that document’s only purpose is the release of a claim to the exemption.  Therefore, any agreements to transfer the dependency exemption should contain a requirement that Form 8332 be executed every year.

Furthermore, the party receiving the dependency exemption should notify their CPA or tax preparer every year of this requirement.  To access the 8332 form click this link, http://www.irs.gov/pub/irs-pdf/f8332.pdf.

If you have any further questions with regard to tax implications regarding your child(ren), or other legal issues, please contact The Marks Law Firm at (407) 872-3161.

Judicial Procedures in Orlando Domestic Violence Injunctions

Domestic Violence is often a part of many Family Law cases. Each Domestic Violence situation is unique and must be individually examined by the Court.

Prior to a Court making any decisions regarding Injunctions (commonly known as “Restraining Orders”), a Judge must consider whether the Petitioner (the person seeking the Injunction), has a legal right to ask for same and whether the allegations presented meet the statutory definition of “Domestic Violence.”

The Judge must also determine whether there is an immediate and present danger of Domestic Violence, as well as various issues related to custody and/or visitation if minor children are involved.

Once a Judge has made the above preliminary findings and either a Temporary Injunction has been issued or a Hearing has been set on the initial Petition, the Court will move towards issuing or denying a Final Injunction.  At this point, the Judge will review any related cases with the same parties where provisions of other Injunctions may possibly conflict with the present circumstances.

Thereafter, the Judge will again examine the facts to determine whether the allegations are sufficient to support the immediate and present danger requirement of the Statute. If there are minor children involved, the Court may also make a determination as to appropriate visitation limitations. Finally, depending on the specific circumstances, the Judge may also order various rehabilitative programs such as Batterers’ Intervention, Anger Management, or Substance Abuse Evaluations.

The Child Abduction Prevention Act: Protecting our Children from the Dangers of Abduction by a Parent

Florida Statutes Section 61.45 was recently amended to create the “Child Abduction Prevention Act.”  This Act is beneficial when there is a concern about the risk of removal of a child from the state or country in violation of a parenting plan.

This section includes new preventative and risk factors for the court’s consideration, as well as relief that may be ordered and additional civil/criminal penalties that may result from violation of this section.

Further, if a parent is concerned that the other parent may abduct a child, a great resource is the Department of State website under child abduction.  There is a Child Passport Issuance Alert Program (CPIAP).

The Children’s Passport Issuance Alert Program (CPIAP) allows parents to register their U.S. citizen children under the age of 18 in the Department’s Passport Lookout System.  If a passport application is submitted for a child who is registered in CPIAP, the Department contacts and alerts the parent(s) or guardian(s). The system provides all U.S. passport agencies, as well as U.S. Embassies and Consulates, abroad an alert on a child’s name if a parent or guardian registers an objection to passport issuance for his or her child.  This procedure provides parents advance warning of possible plans for international travel with a child.

Go to the following website to find out more and/or sign up your child(ren) for this program: http://travel.state.gov/abduction/prevention/passportissuanc/passportissuance_554.html:

A court can also order a parent to register with this program sua sponte (on its own accord) or upon motion by a party.

Survive and Thrive in a Critical Crossroads; Follow up to the 2010 CLS Conference

The Marks Law Firm, P.A. recently presented to the Christian Legal Society’s 2010 National Conference here in Orlando and we wanted to share our wonderful experience with our extended Firm family. It was a blessing to have the conference room at the Rosen Plaza Hotel nearly filled for our seminar entitled “Pursuing a Family Law Ministry: Helping Families Survive and Thrive at a Critical Crossroads.” TMLF attorneys Thomas Marks, Andrea Rosser and Eric Faulkner were joined by attorneys and law students from across the nation with attendees coming from Florida to California, Arizona to Ohio, and many places in between. The seminar even took on an international flavor as our farthest traveling attendee came all the way from Germany!

The goal of our time together was to encourage and equip legal professionals to view family law practice not just as a job but as a very real opportunity to minister to the needs of hurting families, and it could not have gone better. The conference allowed us to share the scriptural foundations for a successful family law practice, discuss how we can lead clients by serving them, and provide attendees with practical tips for maximizing their effectiveness as family law attorneys. The feedback was positive and we heard from many attendees that the Firm’s presentation would positively change their attitude and approach toward their family law practice and their clients.

We’ve even had numerous requests for copies of the documents and information we discussed at the conference so the attendees can implement the Firm’s ideas in their own practices.

Like most true ministry opportunities, the Firm got as much from its involvement at the conference as it gave. The time with Christian colleagues from around the world was both a challenge and an encouragement and served as a reminder of our need to constantly focus on God’s goals for our practice. We are thankful to The Christian Legal Society and the conference attendees for the chance to play a small part in the week’s events and hope we can participate again in the future. Finally, for those of you who are interested the Firm’s presentation can be viewed through the Christian Legal Society’s website www.clsnet.org.

Thank you and God bless.

Christian Legal Society National Conference Welcomes The Marks Law Firm

The Marks Law Firm, P.A., is excited to announce that we have been asked to present at the 2010 Christian Legal Society National Conference at the Rosen Plaza Hotel in Orlando! The Firm’s presentation is entitled “Pursuing a Family Law Ministry: Helping Families Survive and Thrive at a Critical Crossroads.” We will provide attendees with guidance for navigating the often stormy waters of family law practice.

It is our honor and privilege to share these Biblical principles with Christian attorneys from around the country. We appreciate the prayers of our extended Firm family (you!) as we prepare and present and look forward to reporting back after a weekend full of encouragement.