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01/10/2014
RD- an actual child support client
"My case was handled quickly and with ease."
01/10/2014
“Prospective clients may not obtain the same or similar results.”
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Presumption of Unfitness in Child Custody

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Family in need of attorney

The Law Office of Alba & Yochim P.A. represents parents in matters involving child custody. When there is a dispute over the custody of a child, whether part of a divorce proceeding, or other family law proceeding, the existence of certain facts, such as domestic violence, can create a presumption of unfitness. However, the presumption is a rebuttable one. This means that the court will consider the presence of specific factors signifying unfitness, to be true, unless the allegedly unfit parent is able to successfully prove he is a fit parent.

Generally, in considering the shared parental responsibility of a child the court will consider the best interest of the child, which requires a consideration of any potential detriments to such child. Some factors are merely considerations, as opposed to presumptions, used by the court in their determination of detriment, unfitness, or similar issues related to the child’s interests. However, other factors are presumed to be detrimental to a child, unless and until such presumption is properly rebutted by the respondent. A presumption of unfitness can arise in a number of circumstances.

For example, the presence of one parent’s conviction for a misdemeanor, in the first degree or higher, for domestic violence against anyone whether a spouse, child or other person, as defined in § 741.28 of Florida Statutes, creates a rebuttable presumption of unfitness for purposes of shared parental responsibility. However, it is also important to note that § 61.13(2)(c)(2) of Florida Statutes, further provides that “[w]hether 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.” This means that even when there is no conviction, the presumption will apply if the court determines that domestic violence did occur.

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In addition, a conviction of a misdemeanor in the first degree or higher, of an offense listed within chapter 775 of Florida Statutes can also create a rebuttable presumption of unfitness. Some examples, as provided within chapter 775, include violent career offenders, habitual violent felony offenders, and sexual predators. A rebuttable presumption can also arise when a parent is incarcerated, and meets the criteria listed within § 39.806(1)(d) of Florida’s Statutes, which pertains to Termination of Parental Rights. In this unique scenario, the absence of an existing proceeding for the termination of rights, would not preclude a presumption of unfitness for purposes of shared parental responsibility.

It is important to remember that no matter what the result of a determination of unfitness, a parent still has the obligation to contribute to the support of the minor child. If you have a custody issue in dispute, or that you wish to dispute, and you believe that the circumstances may involve a presumption of unfitness, understanding your rights as a parent, can be vitally important to the protection of your rights as a parent and the rights of your family.