Florida Family Law Rewrite

A Bill To Be Entitled

An act modifying the family and juvenile law code; greatly strengthening marriage; protecting the rights of parents and children to their care, custody and association; protecting against paternity fraud; requiring paternity testing under certain circumstances; providing for child support obligations; protecting parents from the felonious acts of their minor children; protecting children and families from abuses by Protective Services and other related purposes.

EXECUTIVE SUMMARY

This act serves to make the following changes and additions to Florida Family Law:

1. Provides for the filing of private marital contracts with marriage licenses, allowing marriage partners to provide for the terms under which their marriages exist, including the terms and procedures for dissolution, division of assets, and custody of children.

2. Modifies civil liability currently assessed against parents for minor children’s felonious acts; provides for the ability of parents to forcibly emancipate children who commit felonies, voluntarily give birth or sire children out of wedlock rather than accept financial and personal responsibility for those acts.

3. Requires a paternity determination using scientific (DNA) testing before a child support order can be entered or modified against a man, allows for the recovery of all child support paid to a woman, and her prosecution for fraud and conversion, if she defrauded a man in naming him falsely the father of a child and received child support as a consequence.

4. Provides for the recovery of economic and non-economic damages from a person who files a false domestic violence petition, dismisses a protective order before hearing, or attempts to entrap an enjoined person to violate a protective order (or to contact him or her even though they have taken out that protective order.) Provides that a person who takes out a protective order and then initiates contact in violation of that order voids the order by their actions, preventing entrapment attempts.

5. Abolishes “custody” as an action at law in ordinary civil divorce actions, with exceptions provided for cases in which a parent is unfit due to abuse, neglect or abandonment of the child. Abolishes child support awards except in cases where a parent is unwilling or unable (due to being unfit) to be fully involved as a shared parent. Prohibits move-aways that have a substantive impact on parental rights and responsibilities without the consent of the parties. Requires the court to accept privately-negotiated agreements on custody, and provides a default of 50/50 parenting for parents who are unable – or unwilling – to agree between themselves. Defines acts that cause a parent to be adjudicated unfit for custody. Requires the court to honor the agreements filed in (1) above. Abolishes interim attorney fee awards. Abolishes the interest of third parties (including grandparents) to bring custody or visitation lawsuits.

6. Abolishes final fee awards from one party to the other as contrary to the interest of the litigants, in that forcing one to pay an attorney to argue against one’s own interest is an impermissible legislative act.

7. Social investigations are abolished as unnecessary in a climate where all parents are presumed fit and with equal custodial rights and responsibilities unless proven otherwise.

8. Guardian-ad-litem immunity is abolished as improper in that as persons appointed to act in the child’s best interest, and given that parents have an indivisible interest in their children, it is unconscionable to immunize GALs against tort claims for their negligent or intentional acts which harm either a parent, child, or both.

9. Strengthens protections against parental abduction by reducing the standard of proof for a court to require the cancellation of a child’s passport or other protective measures against parental kidnapping.

10. Strengthens penalties for parental kidnapping by making such an offense a second-degree felony (from third-degree) and prohibit pleas that reduce the charge to that of a misdemeanor.

11. Edit Chapter 39 of the Florida Judicial Code to modify the State’s Rights and Responsibilities related to the care of children under its custody, increasing the protection for children and requiring a higher standard of proof before children are removed from their homes. Removes immunity for negligent acts, and requires insurance or bonding to protect the right of the people to recover for harm done by the Department and their agents. Protects access to full, unedited copies of records for children and families impacted by the Department. Removes confidentiality of reporters, and immunity for false reports, from those who are the subject of said reports.

Be It Enacted by the Legislature of the State of Florida:

The Legislature finds that the current family law system in the State of Florida:

1. Has been used to derogate the fundamental social institution of marriage, has impermissibly infringed on the fundamental liberty interest, as expounded upon repeatedly by the United States Supreme Court, to the care, custody and rearing of one’s children, has been abused by individuals to prosecute vendettas and gain financial advantage, and has forced individuals to fund arguments against their own interest in court.

2. Abrogates the fundamental liberty interest that fit parents, as well as competent adults, have in setting the terms of their own marital obligations, including but not limited to matters of finance and child-rearing, as with any other contract between persons, and that such interest is an inherent and necessary component of the social institution of Marriage.

3. Has violated the Constitutional principle, as expressed in the Constitution, that a person has a right to face their accuser when criminal conduct has been alleged, has supported the removal of children from homes when no act of actual abuse or neglect is ever proven or, in many cases, even referred for prosecution, and has shielded those who have leveled those accusations from civil responsibility for their conduct.

4. Has treated some minors as adults for the purposes of criminal liability, charging them with felony offenses, while at the same time forcing parents to subsidize and even support felonious behavior.

5. Has impermissibly granted minors the right to make life decisions that empower them as adults, while denying their parents the right to declare them as adults, with all the rights, privileges and responsibilities thereto, thereby shifting the costs of such empowerment unwillingly upon the parents.

In order to redress these violations of fundamental liberty interests and Constitutional Rights, which have been perverse, pervasive and oppressive to the people of the State of Florida, the Legislature modifies the Florida State Code as follows:

Section 1. Section 741.06, Florida Statutes, is created to read:

741.06 Private Marriage License Terms Enforceable

1. Parties applying for a marriage license may attach as an integral portion of their marriage license application, privately-negotiated agreements bearing on their marriage, including but not limited to agreements on property ownership, division of assets and custody of any minor children born or adopted into the union in the event of dissolution. Such agreements may include the effect of determination of fault on any subsequent dissolution proceedings, and may waive, modify, or abrogate any doctrine of “no fault” divorce.

2. The Clerk of the Court shall be required to either accept or reject the party’s license application, including any such terms and conditions, in full and may make no modifications thereupon. The parties may make application for judicial review of any such proposed agreement prior to application for their marriage license, with costs of any such review, if requested, to be borne by the parties.

3. Parties not filing a private document shall instead file a copy of the Family Law Handbook, referenced in Section 741.0306, as of the date of the marriage license application.

4. The terms of any such agreement associated with and attached to the party’s marriage license shall inure and bind the celebrants and their estate(s), in common and separately, in perpetuity, and no modification of the Statutes shall retroactively modify the rights, responsibilities, and contractual obligations set forth in the original application.

5. The terms of any such agreement may be modified only by a voluntarily-written document, signed and notarized by both parties, and filed with the Clerk of the Court where the original license issued. No act of the Legislature, nor any arm or instrumentality of the State, whether explicit or implicit, shall require that such a modification be filed.

6. The pleading of such a document shall bind any court of competent jurisdiction in the State Of Florida to the terms and remedies therein, and the Courts of the State of Florida shall retain jurisdiction in order to enforce the terms of any such agreement, irrespective of the later domicile of the celebrants of the marriage in question.

7. As the privacy of marital couples is a compelling interest, the terms of such agreements filed with marriage license applications shall be non-public documents and available only to the celebrants or their respective estates, and immune from public disclosure. A person publishing or disseminating these agreements without the explicit authorization of one of the celebrants to the marriage shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

8. The parties to a marriage who reside in the State of Florida who do not currently have such a document attached to their marriage license, whether their license was originally issued in this state or any other, may re-file their marriage license with the State of Florida and attach such terms to their license at any date of their choosing.

Section 61.043 is hereby modified to read as follows:

61.043 Commencement of a proceeding for dissolution of marriage or for alimony and child support; dissolution questionnaire.--

(1) A proceeding for dissolution of marriage or a proceeding under s. 61.09 shall be commenced by filing in the circuit court a petition entitled "In re the marriage of _____, husband, and _____, wife." A copy of the petition together with a copy of a summons shall be served upon the other party to the marriage in the same manner as service of papers in civil actions generally. The petition shall include the terms of the marital agreement filed with the party’s original marriage license, as amended by the parties, or a statement that no such document was ever filed by the parties to the marriage.

9. Section 61.052 is modified to read as follows:

61.052 Dissolution of marriage.--

(1) No judgment of dissolution of marriage shall be granted unless one of the following facts appears, which shall be pleaded generally:

(a) The marriage is irretrievably broken and either:

1. The parties do not have a marriage agreement filed with their marriage license, either in Florida or any other state, or

2. The parties do have a marriage agreement and the irretrievable breakdown of the marriage falls within one of the permissible areas of the marriage agreement for dissolution of the party’s marriage. If such an agreement exists the marriage agreement must be attached to and filed with the petition for dissolution.

Section 2. Civil Liability for Minor Children Modified; Forcible Emancipation Option for Parents Upon Commission of a Felony Offense or Unmarried Birth:

Section 741.24 is modified to read:

741.24 Civil action against parents; willful destruction or theft of property by minor.--

(1) Any municipal corporation, county, school district, or department of Florida; any person, partnership, corporation, or association; or any religious organization, whether incorporated or unincorporated, shall be entitled to recover damages in an appropriate action at law, in a court of competent jurisdiction, from the parents of any minor under the age of 18 years, living with the parents, who maliciously or willfully destroys or steals property, real, personal, or mixed, belonging to such municipal corporation, county, school district, department of the state, person, partnership, corporation, association, or religious organization provided that the acts described herein constitute a misdemeanor. If the acts constitute a felony offense, and one or both parents file a forcible emancipation petition upon conviction for the predicate felony, the right of recovery against the parents so moving the court shall be set aside and of no force or effect.

Section 743.097 of the Florida Code is hereby created as follows:

743.097 Forcible Emancipation of Minors by Parents Upon the Commission of Certain Acts

A circuit court shall be required to remove the disability of Non-Age from a minor upon petition from one or both of the minor’s parents in the event:

(1) That the minor is adjudicated guilty, by trial or any plea establishing guilt, including one of nolo-contendre, for a felony offense in this state, irrespective of the minor’s age. Such a declaration of legal adulthood by the Circuit Court shall operate to release the parents of said minor from all rights and obligations of parenthood towards said former minor, including but not limited to the duty of support, shelter and education.

(2) That said minor, being female, through a voluntary act becomes pregnant and gives birth to a child out of wedlock without the consent of all parent(s) of said minor having legal custody of said minor, irrespective of the minor’s age.

(3) That said minor, being male, through a voluntary act sires a child out of wedlock without the consent of all parent(s) of said minor having legal custody of said minor, irrespective of the minor’s age.

(4) The criminal offense of statutory rape, irrespective of whether the minor is the offender or victim, shall not disabuse the voluntary nature of the act(s) giving rise to a child born out of wedlock for the purposes of this section.

Section 3: The Legislature finds that the current implementation of the law with regards to paternity determinations often causes men to pay child support for children who are not theirs, and often rewards women for making false statements of paternity. It is therefore the public policy of the State of Florida that the following revisions shall be made to Chapter 742, in the form of the following changes:

742.12 Scientific testing to determine paternity.--

(1) In any proceeding to establish paternity, the court on its own motion shall~~may~~ require the child, mother, and alleged fathers to submit to scientific tests that are generally acceptable within the scientific community to show a probability of paternity. The court shall direct that the tests be conducted by a qualified technical laboratory.

(2) In any proceeding to establish paternity, the court shall~~may~~, upon request of a party providing a sworn statement or written declaration as provided by s. 92.525(2) alleging paternity and setting forth facts establishing a reasonable possibility of the requisite sexual contact between the parties or providing a sworn statement or written declaration denying paternity and setting forth facts establishing a reasonable possibility of the nonexistence of sexual contact between the parties, require the child, mother, and alleged fathers to submit to scientific tests that are generally acceptable within the scientific community to show a probability of paternity. The court shall direct that the tests be conducted by a qualified technical laboratory.

(3) The test results, together with the opinions and conclusions of the test laboratory, shall be filed with the court. Any objection to the test results must be made in writing and must be filed with the court at least 10 days prior to the hearing. If no objection is filed, the test results shall be admitted into evidence without the need for predicate to be laid or third-party foundation testimony to be presented. Nothing in this paragraph prohibits a party from calling an outside expert witness to refute or support the testing procedure or results, or the mathematical theory on which they are based. Upon the entry of the order for scientific testing, the court must inform each person to be tested of the procedure and requirements for objecting to the test results and of the consequences of the failure to object.

(4) Test results are admissible in evidence and should be weighed along with other evidence of the paternity of the alleged father unless the statistical probability of paternity equals or exceeds 95 percent. A statistical probability of paternity of 95 percent or more creates a rebuttable presumption, as defined by s. 90.304, that the alleged father is the biological father of the child. If a party fails to rebut the presumption of paternity which arose from the statistical probability of paternity of 95 percent or more, the court may enter a summary judgment of paternity. If the test results show the alleged father cannot be the biological father, the case shall be dismissed with prejudice.

(5) Subject to the limitations in subsection (3), if the test results or the expert analysis of the inherited characteristics is disputed, the court, upon reasonable request of a party, shall order that an additional test be made by the same laboratory or an independent laboratory at the expense of the party requesting additional testing.

(6) Verified documentation of the chain of custody of the blood or other specimens is competent evidence to establish the chain of custody.

(7) The fees and costs for scientific tests shall be paid by the non-prevailing party ~~parties in proportions and~~ at times determined by the court unless the parties reach a stipulated agreement which is adopted by the court.

(8) No application for child support, or modification of an existing order that results in other than a zero ($0) dollar award, may be filed against a man under Florida Statutes, irrespective of the provisions of any other Chapter, without documented scientific evidence of paternity, except in cases where a child has been adopted by the putative father.

(9) Any man against whom child support has been levied, or is currently being levied, and who has not adopted the child involved, may contest the paternity of the child covered by such order, irrespective of his marriage to the mother of the child at the time. The court shall order scientific testing in accordance with this section upon presentation of the motion for same, with the following results:

a. If paternity is established under 742.12, then the man filing the motion shall pay all costs and expenses and his paternity shall become unconstestable.

b. If paternity is disproved, the man alleged to have been the father and who has been paying child support shall have all of the following remedies:

i. An immediate judgment for all of the paid child support to date shall issue, subject to an interest rate of 6% per annum from the date of payment, compounded monthly. Such judgment shall be rendered with malice as the gist of the action, shall be immune from discharge in bankruptcy, and shall be enforceable immediately by a writ of seizure of any assets currently held by the woman to whom the funds have been paid.

ii. The right to prefer criminal charges against the woman who alleged that he was the father with the offence of criminal fraud and conversion in the amount of the support collected under false pretense. The District Attorney shall proceed upon and prosecute any complaint filed under this section by a man falsely accused of paternity.

The statute of limitations shall run seven (7) years following the child’s 18^th birthday covered by the support order.

Section 4: The Legislature finds Section 741.28-31 (Domestic Violence) contains multiple opportunities for abuse of civil rights, and such abuses are frequently employed as tactical measures in divorce and custody actions. As such the following modifications to the domestic violence code are made:

Section 741.311 is hereby created to read as follows:

Section 741.311 Recovery of economic and non-economic damages from dismissed or false petitions; criminal prosecution required for perjury; dismissal upon intentional act of petitioner to violate injunction.

A person named as a respondent in a domestic violence petition shall have a right of recovery against the petitioner for all costs and expenses incurred as a consequence of the injunction filed against him or her, whether economic or non-economic in nature, including but not limited to actual loss of use of any residential or personal property, expenses to replace clothing or personal effects as a consequence of lack of access to same, non-economic harm for infringement of parental rights with respect to any children of the parties, and all consequential and incidental damages associated therein, if:

1. The complaint is dismissed by the petitioner prior to hearing, or

2. No prosecution is recommended, the charge(s) are dismissed, or the respondent is found not guilty in any resulting trial for the predicate act(s) giving rise to the original complaint, or

3. The petitioner, as a voluntary act, at any time attempts to or actually initiates contact with or causes a violation of the order by the respondent, either with the intent to entrap in a violation or for genuine purposes, against whom he or she has obtained an injunction under this section, or

4. Any material element of the petition requesting the original protective order is found, at hearing, to be false.

In the event of a finding of falsity of any material element of the petition for a protective order, the Court shall refer the matter to the District Attorney and the District Attorney shall prosecute the petitioner for perjury. Such prosecution shall be in addition to, and not in substitution for, the rights of recovery under this section.

The Court shall dismiss any injunctive Domestic Violence order if, upon hearing, it is established that petitioner attempted to, or actually did, cause contact to be initiated or any provision of the injunctive order to be violated, whether for genuine purposes or for the purpose of entrapment of the respondent.

Section 5: Custody of the Child Abolished Except in Cases of Abuse, Neglect or Abandonment; cures; parental rights established at birth for both natural parents except in cases of adoption or surrogacy.

It is the finding of the Legislature that parents have a fundamental liberty interest in the custody, care and control of their minor children, irrespective of whether the parents are or ever were in a state of marriage. As such the Legislature modifies the following sections of the Florida Statutes to remove “custody” as a cause of action that may be litigated within this state, provided that both parents are fit. It is the further finding of the Legislature that the best interest of children is served by the personal care and custody of their parents, and that such fundamental liberty interests shall be protected unless good and sufficient cause is shown for abrogating those rights, which shall be limited to abandonment or proof by a criminal standard of neglect, abuse, or other conduct that renders one or both parents unfit. Finally, it is the intent of the legislature to allow celebrants to a marriage to determine among themselves modifications to this general public policy, which are to be recorded along with the marriage licenses associated with said celebrants, as otherwise provided for in this act.

To implement these findings the Legislature makes the following modifications:

1. Section 742.031(2) is hereby stricken in its entirety.

2. The following sections of the Florida Statutes are modified as shown:

61.052 Dissolution of marriage.--

(1) No judgment of dissolution of marriage shall be granted unless one of the following facts appears, which shall be pleaded ~~generally~~:

(a) ~~(a)~~ The marriage is irretrievably broken and either:

1. The parties have no agreement attached to their marriage license in any jurisdiction, or

2. The parties do have such an agreement and under its terms the marriage meets the irretrievably broken test specified therein, or

3. The parties consent to the dissolution of marriage, irrespective of prior agreement of the parties.

(b) Mental incapacity of one of the parties. However, no dissolution shall be allowed unless the party alleged to be incapacitated shall have been adjudged incapacitated according to the provisions of s. 744.331 for a preceding period of at least 3 years. Notice of the proceeding for dissolution shall be served upon one of the nearest blood relatives or guardian of the incapacitated person, and the relative or guardian shall be entitled to appear and to be heard upon the issues. If the incapacitated party has a general guardian other than the party bringing the proceeding, the petition and summons shall be served upon the incapacitated party and the guardian; and the guardian shall defend and protect the interests of the incapacitated party. If the incapacitated party has no guardian other than the party bringing the proceeding, the court shall appoint a guardian ad litem to defend and protect the interests of the incapacitated party. However, in all dissolutions of marriage granted on the basis of incapacity, the court may require the petitioner to pay alimony pursuant to the provisions of s. 61.08.

(2) Based on the evidence at the hearing, which evidence need not be corroborated except to establish that the residence requirements of s. 61.021 are met which may be corroborated by a valid Florida driver's license, a Florida voter's registration card, a valid Florida identification card issued under s. 322.051, or the testimony or affidavit of a third party, the court shall dispose of the petition for dissolution of marriage when the petition is based on the allegation that the marriage is irretrievably broken as follows:

(a) If there is no minor child of the marriage and if the responding party does not, by answer to the petition for dissolution, deny that the marriage is irretrievably broken, the court shall enter a judgment of dissolution of the marriage if the court finds that the marriage is irretrievably broken.

(b) When there is a minor child of the marriage, or when the responding party denies by answer to the petition for dissolution that the marriage is irretrievably broken, the court may:

1. Order either or both parties to consult with a marriage counselor, psychologist, psychiatrist, minister, priest, rabbi, or any other person deemed qualified by the court and acceptable to the party or parties ordered to seek consultation; or

2. Continue the proceedings for a reasonable length of time not to exceed 3 months, to enable the parties themselves to effect a reconciliation; or

3. Take such other action as may be in the best interest of the parties and the minor child of the marriage.

If, at any time, the court finds that the marriage is irretrievably broken, the court shall enter a judgment of dissolution of the marriage. If the court finds that the marriage is not irretrievably broken, it shall deny the petition for dissolution of marriage.

At all times in such proceedings the court shall honor any filed marital agreement with the issuance of the original marriage license and any amendment or modification thereto made by the parties, and may not deviate from the terms therein.

(3) During any period of continuance, the court may make appropriate orders for the support and alimony of the parties; the primary residence, ~~custody, rotating custody, visitation, support, maintenance, and education of the minor child of the marriage; attorney's fees;~~ and the preservation of the property of the parties. Orders pertaining to custody, visitation, support, maintenance and education of the minor children of the parties, if any, may be made only if one or both of the parents is adjudicated unfit or has abandoned their family responsibilities as set forth in s. 61.13.3.

(4) A judgment of dissolution of marriage shall result in each spouse having the status of being single and unmarried. No judgment of dissolution of marriage renders the child of the marriage a child born out of wedlock.

(5) The court ~~may~~ shall enforce an antenuptial agreement to arbitrate a dispute in accordance with the law and tradition chosen by the parties.

(6) Any injunction for protection against domestic violence arising out of the dissolution of marriage proceeding shall be issued as a separate order in compliance with chapter 741 and shall not be included in the judgment of dissolution of marriage.

(7) In the initial pleading for a dissolution of marriage as a separate attachment to the pleading, each party is required to provide his or her social security number and the full names and social security numbers of each of the minor children of the marriage.

(8) Pursuant to the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996, each party is required to provide his or her social security number in accordance with this section. Each party is also required to provide the full name, date of birth, and social security number for each minor child of the marriage. Disclosure of social security numbers obtained through this requirement shall be limited to the purpose of administration of the Title IV-D program for child support enforcement.

61.071 Alimony pendente lite~~; suit money~~.--In every proceeding for dissolution of the marriage, a party may claim alimony ~~and suit money~~ in the petition or by motion, and if the petition is well founded, the court shall allow a reasonable sum therefor. If a party in any proceeding for dissolution of marriage claims alimony ~~or suit money~~ in his or her answer or by motion, and the answer or motion is well founded, the court shall allow a reasonable sum therefor.

61.075 Equitable distribution of marital assets and liabilities.--

(1) In a proceeding for dissolution of marriage, in addition to all other remedies available to a court to do equity between the parties, or in a proceeding for disposition of assets following a dissolution of marriage by a court which lacked jurisdiction over the absent spouse or lacked jurisdiction to dispose of the assets, the court shall set apart to each spouse that spouse's nonmarital assets and liabilities, and in distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors, including:

(a) The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker.

(b) The economic circumstances of the parties.

(d) Any interruption of personal careers or educational opportunities of either party.

(e) The contribution of one spouse to the personal career or educational opportunity of the other spouse.

(f) The desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party.

(g) The contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the nonmarital assets of the parties.

(h) The desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court of competent jurisdiction. In making this determination, the court shall first determine if it would be in the best interest of the dependent child to remain in the marital home; and, if not, whether other equities would be served by giving any other party exclusive use and possession of the marital home.

(i) The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition.

(j) Any other factors necessary to do equity and justice between the parties

Irrespective of the factors above and elsewhere in Chapter 61, the marital agreement filed with the parties’ marriage license, whether prenuptial or ante-nuptial, shall control over all considerations above. No court may set aside such an agreement and make an award contrary to its terms.

61.08 Alimony.--

(1) In a proceeding for dissolution of marriage, the court may grant alimony to either party, which alimony may be rehabilitative or permanent in nature. In any award of alimony, the court may order periodic payments or payments in lump sum or both. The court may consider the adultery of either spouse and the circumstances thereof in determining the amount of alimony, if any, to be awarded. In all dissolution actions, the court shall include findings of fact relative to the factors enumerated in subsection (2) supporting an award or denial of alimony. Any award of Alimony must be made with due regard to any Marital Agreement filed with the parties marriage license and may not contravene its provisions.

61.09 Alimony and child support unconnected with dissolution.--If a person having the ability to contribute to the maintenance of his or her spouse and support of his or her minor child fails to do so, the spouse who is not receiving support or who has custody of the child or with whom the child has primary residence may apply to the court for alimony and for support for the child without seeking dissolution of marriage, and the court shall enter an order as it deems just and proper, if it finds that the other parent is either unfit or has abandoned the family as defined in s. 61.13.3.

History.--ss. 1, 2, ch. 3581, 1885; RS 1485; GS 1933; RGS 3196; CGL 4988; s. 2, ch. 29737, 1955; s. 1, ch. 65-498; s. 16, ch. 67-254; s. 11, ch. 71-241; s. 116, ch. 86-220; s. 320, ch. 95-147.

Note.--Former s. 65.09.

61.10 Adjudication of obligation to support spouse or minor child unconnected with dissolution~~; child custody, child's primary residence, and visitation~~.--Except when relief is afforded by some other pending civil action or proceeding, a spouse residing in this state apart from his or her spouse and minor child, ~~whether or not such separation is through his or her fault,~~ may obtain an adjudication of obligation to maintain the spouse and minor child, if any. The court shall adjudicate his or her financial obligations to the spouse and child., ~~shall establish the child's primary residence, and shall determine the custody and visitation rights of the parties.~~ A party who is at fault is barred from bringing such a proceeding and, except where the court finds that a parent is unfit under s. 61.13.3 it shall not make an award of custody or visitation. Such an action does not preclude either party from maintaining any other proceeding under this chapter for other or additional relief at any time.

History.--s. 1, ch. 61-112; s. 16, ch. 67-254; s. 12, ch. 71-241; s. 117, ch. 86-220; s. 321, ch. 95-147.

61.13 Custody and support of children; visitation rights; power of court in making orders.--

(1)(a) In a proceeding for dissolution of marriage, the court may at any time order either or both parents who owe a duty of support to a child to pay support in accordance with the guidelines in s. 61.30 only if it finds that a parent is unfit under s. 61.13.3. The court initially entering an order requiring one or both parents to make child support payments shall have continuing jurisdiction after the entry of the initial order to modify the amount and terms and conditions of the child support payments ~~when the modification is found necessary by the court in the best interests of the child,~~ when the child reaches majority, or when there is a substantial change in the circumstances of the parties in accordance with this Chapter. The court initially entering a child support order shall also have continuing jurisdiction to require the obligee to report to the court on terms prescribed by the court regarding the disposition of the child support payments.

(b) Each order for support shall contain a provision for health care coverage for the minor child when the coverage is reasonably available. Coverage is reasonably available if either the obligor or obligee has access at a reasonable rate to a group health plan. The court may require the obligor either to provide health care coverage or to reimburse the obligee for the cost of health care coverage for the minor child when coverage is provided by the obligee. In either event, the court shall apportion the cost of coverage, and any noncovered medical, dental, and prescription medication expenses of the child, to both parties by adding the cost to the basic obligation determined pursuant to s. 61.30(6). The court may order that payment of uncovered medical, dental, and prescription medication expenses of the minor child be made directly to the obligee on a percentage basis. The court may require either party to provide health care coverage and will apportion the cost thereof between the parties in direct relationship to their respective net incomes, and add any such net amount due from one party to another to a basic obligation under s. 61.30(6). If no child support is otherwise ordered, the court may enter a medical support order compelling the non-providing parent to reimburse the paying parent for their ratable percentage of medical insurance. Uncovered medical, dental and prescription medications are to be ratably assessed against the parents, and payment made from the parent with the greater income to the one with the lesser, according to the ratable net income of the parties.

(b) All child and medical support orders must contain an automatic termination clause upon the earliest occurrence of the child involved (1) reaching the age of 18 years, (2) becoming emancipated through their own petition or that of their parents, or (3) ceasing to reside with the parent receiving the support payment. Obligees shall report to both the obligor and the court within ten (10) days:

1. The departure of the child from the household, whether voluntarily or involuntarily.

2. Any act of emancipation, including marriage of the child or an act subject to forcible emancipation under s. 743.097

3. The child reaching the age of 18 years.

An order for child or medical support is void upon the occurrence of any of the above events and any amount paid subsequent to those events is forfeit to the obligor upon demand.

(c) Any child or medical support order that operates to provide for an obligation beyond any of the above events is void on its face as contrary to the public policy of the State of Florida.

1. In a non-Title IV-D case, a copy of the court order for health care coverage shall be served on the obligor's union or employer by the obligee when the following conditions are met:

a. The obligor fails to provide written proof to the obligee within 30 days after receiving effective notice of the court order, that the health care coverage has been obtained or that application for coverage has been made;

b. The obligee serves written notice of intent to enforce an order for health care coverage on the obligor by mail at the obligor's last known address; and

c. The obligor fails within 15 days after the mailing of the notice to provide written proof to the obligee that the health care coverage existed as of the date of mailing.

2.a. A support order enforced under Title IV-D of the Social Security Act which requires that the obligor provide health care coverage is enforceable by the department through the use of the national medical support notice, and an amendment to the support order is not required. The department shall transfer the national medical support notice to the obligor's union or employer. The department shall notify the obligor in writing that the notice has been sent to the obligor's union or employer, and the written notification must include the obligor's rights and duties under the national medical support notice. The obligor may contest the withholding required by the national medical support notice based on a mistake of fact. To contest the withholding, the obligor must file a written notice of contest with the department within 15 business days after the date the obligor receives written notification of the national medical support notice from the department. Filing with the department is complete when the notice is received by the person designated by the department in the written notification. The notice of contest must be in the form prescribed by the department. Upon the timely filing of a notice of contest, the department shall, within 5 business days, schedule an informal conference with the obligor to discuss the obligor's factual dispute. If the informal conference resolves the dispute to the obligor's satisfaction or if the obligor fails to attend the informal conference, the notice of contest is deemed withdrawn. If the informal conference does not resolve the dispute, the obligor may request an administrative hearing under chapter 120 within 5 business days after the termination of the informal conference, in a form and manner prescribed by the department. However, the filing of a notice of contest by the obligor does not delay the withholding of premium payments by the union, employer, or health plan administrator. The union, employer, or health plan administrator must implement the withholding as directed by the national medical support notice unless notified by the department that the national medical support notice is terminated.

b. In a Title IV-D case, the department shall notify an obligor's union or employer if the obligation to provide health care coverage through that union or employer is terminated.

3. In a non-Title IV-D case, upon receipt of the order pursuant to subparagraph 1., or upon application of the obligor pursuant to the order, the union or employer shall enroll the minor child as a beneficiary in the group health plan regardless of any restrictions on the enrollment period and withhold any required premium from the obligor's income. If more than one plan is offered by the union or employer, the child shall be enrolled in the group health plan in which the obligor is enrolled.

4.a. Upon receipt of the national medical support notice under subparagraph 2. in a Title IV-D case, the union or employer shall transfer the notice to the appropriate group health plan administrator within 20 business days after the date on the notice. The plan administrator must enroll the child as a beneficiary in the group health plan regardless of any restrictions on the enrollment period, and the union or employer must withhold any required premium from the obligor's income upon notification by the plan administrator that the child is enrolled. The child shall be enrolled in the group health plan in which the obligor is enrolled. If the group health plan in which the obligor is enrolled is not available where the child resides or if the obligor is not enrolled in group coverage, the child shall be enrolled in the lowest cost group health plan that is available where the child resides.

b. If health care coverage or the obligor's employment is terminated in a Title IV-D case, the union or employer that is withholding premiums for health care coverage under a national medical support notice must notify the department within 20 days after the termination and provide the obligor's last known address and the name and address of the obligor's new employer, if known.

5.a. The amount withheld by a union or employer in compliance with a support order may not exceed the amount allowed under s. 303(b) of the Consumer Credit Protection Act, 15 U.S.C. s. 1673(b), as amended. The union or employer shall withhold the maximum allowed by the Consumer Credit Protection Act in the following order:

(I) Current support, as ordered.

(II) Premium payments for health care coverage, as ordered.

(III) Past due support, as ordered.

(IV) Other medical support or coverage, as ordered.

b. If the combined amount to be withheld for current support plus the premium payment for health care coverage exceed the amount allowed under the Consumer Credit Protection Act, and the health care coverage cannot be obtained unless the full amount of the premium is paid, the union or employer may not withhold the premium payment. However, the union or employer shall withhold the maximum allowed in the following order:

(I) Current support, as ordered.

(II) Past due support, as ordered.

(III) Other medical support or coverage, as ordered.