RD- an actual child support client
"My case was handled quickly and with ease."
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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Understanding the Custody Process

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Family in need of attorney

The Gainesville Child Custody Attorneys of the Law Office of Alba & Yochim P.A. know that for most parents, having an issue over a custodial matter can be stressful in and of itself, let alone trying to understand the legal processes and procedures involved in attaining resolution. In practice, we have found that it is often helpful for parents to view child custody matters in a more simplistic manner.

In particular, knowing the meaning and significance of some basic terms—proceeding, commencement, determination, modification—can greatly assist parents in understanding the custody process.

Proceeding

A proceeding is defined as:

“A lawsuit; all or some part of a cause heard and determined by a court, an Administrative Agency, or other judicial authority. Any legal step or action taken at the direction of, or by the authority of, a court or agency; any measures necessary to prosecute or defend an action.”

A legal proceeding is defined as:

“acquiring a benefit, interest, or right by enforcing a remedy, action or procedure established by court decision.”

In family law matters involving custodial or parental rights, A child custody proceeding, as defined by section 61.503(4) of Florida Statutes means:

“a proceeding in which legal custody, physical custody, residential care, or visitation with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear. The term does not include a proceeding involving juvenile delinquency, contractual emancipation, or enforcement under ss. 61.524-61.540.”

Commencement

Often time, parental disputes regarding the custody of child occur long before the parents ever seek legal intervention. However, commencement of custody matters, in the legal setting, refers to “the filing of the first pleading in a proceeding.” See, Fla. Stat. §61.503(5). In other words, a child custody proceeding is commenced when a parent, or prospective parent, files the initial document pertaining to a child with the court. See also, ‘Jurisdiction and Venue.’

While the definition of commencement may seem fairly straightforward, parents should keep in mind the limitations of parental rights prior to commencement. In example, consider the rights of a father in cases where the parties were never married, no father is listed on the birth certificate, paternity has not been established, and the only undisputed fact is that the mother gave birth to a child. In this scenario, failing to commence a child custody proceeding, can have a number implications both in regard to financial support, as well as time-sharing and access to the child.

It is important for parents to understand the differences between (1) rights and obligations, regarding child support and custody, that have been previously established by the court; (2) those that exist by operation of law; and (3) the interaction and impact of each. Generally speaking, the sooner a parent takes legal action, the better their chances are in attaining a favorable outcome.

Determination

Following the ‘commencement’ of a ‘child custody proceeding,’ the court will make a determination. Pursuant to state law, as adopted by the UCCJEA, an “initial determination” means the first ‘child custody determination’ concerning a particular child. Further, Florida Statute 61.503(3) defines as child custody determination as:

“a judgment, decree, or other order of a court providing for the legal custody, physical custody, residential care, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order. The term does not include an order relating to child support or other monetary obligation of an individual.”

Parents should note the statutory exclusion of child support and other financial obligations. In other words, custodial matters are determined separate from support matters. HOWEVER, this is not to say that support matters will not come into play in custody proceedings. In fact, the two determinations often occur in conjunction with another within a single proceeding, particularly in custody matters involving divorce.

Modification

Where the ‘commencement’ of a ‘proceeding’ has resulted in a ‘child custody determination’, it may be necessary for a parent to seek modification. Similar to initial custody determinations, modifications must also be considered in terms of what is best for the child. However, legal grounds for modification of custody are limited to situations where there is a substantial, material, and unexpected change. In general, any custodial arrangement that causes detriment to a child will serve as ground for modification.

While for many parents modifying custody can be a suitable and effective approach, it is also important to know that modifications can be far more difficult to attain. Consequently, parents are generally much better off in ensuring that initial custody determinations are properly evaluated and/or defended, and that custody orders are properly established. Parents should not assume that they can always go back and fix a problem that should have been addressed in a prior proceeding. In short, early intervention is best.

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Our attorneys offer services in Alachua, Lake, and Marion, as well as other counties that surround the Gainesville-Ocala area. Prospective clients should know that we offer full representation in child custody and related family law matters, as well as legal advice in a limited/consulting capacity. Let us help you protect your rights, and protect your children.