Transcript

Howard Iken:

Good morning everyone.

Jeana Vogel:

Good morning.

Howard Iken:

This is Howard Iken, managing partner of Ayo and Iken, and we’ve gathered together three of our very experienced attorneys to talk about some latest legal changes that were signed into law by Governor DeSantis. And today we’re going to talk about changes that affect parenting time between various parties in both the paternity action, an out-of-wedlock child, and also a divorce where there’s a child. And we have Crystal Phillips. Good morning, Ms. Phillips.

Crystal Phillips:

Good morning, Mr. Iken.

Howard Iken:

We have Jeana Vogel on the line here.

Jeana Vogel:

Good morning.

Howard Iken:

And we’ve got Michael McGinn, and everyone-

Michael McGinn:

Good morning.

Howard Iken:

Good morning. And everyone on this video has one to three decades of family law experience, so we’ve got a very deep pull of experience here.

So let’s get right into it. Mr. McGinn, can you give me a 10,000-foot view of the latest legal changes concerning parenting in Florida?

Michael McGinn:

Sure. The first bill concerns a, if someone’s seeking a modification you would need in the past, you needed a substantial material and unanticipated change. An unanticipated change is something that the parties didn’t contemplate at the time the parenting plan was initially entered.

That could have been, for example, a move for a job change, that somebody was moving and then going to come back. If that wasn’t put in the parenting plan, that would’ve been something the court would then have said, “Well, that was anticipated at the time the parenting plan was entered. You should have put that in there or something in there to reflect that.” Now you don’t need an unanticipated change. It can be something you’ve anticipated will happen in the future and you can go back to court as long as it’s substantial and material. It no longer needs to be unanticipated. The new law-

Howard Iken:

Right. Let me interrupt you there because you said a couple of key words, unanticipated. Ms. Vogel, what effect did that one word have? Because of what Michael said, now we could have, instead of unanticipated changes to modify parenting plans, now it doesn’t have to be that. So what does that word mean, unanticipated? Did that make it more difficult? And is it easier now to make changes in parenting plans?

Jeana Vogel:

I think it became easier to make changes. The unanticipated was a hurdle that a lot of parties couldn’t overcome because they believed, “Okay, I’m going to move. I’m going to have a job change,” as Mr. McGinn stated. But if you didn’t put it in the parenting plan, then you couldn’t affect that change later on. So now unanticipated is off the table and all you have to approve is substantial change in circumstances that are material.

Howard Iken:

All right. So is it easier to modify a final judgment that gives you a certain amount of parenting time? Is it now easier or harder?

Jeana Vogel:

Easier.

Howard Iken:

Okay, terrific. Crystal, do you think one gender or another is the winner here, and do you think the other gender is the loser in these changes, and how so?

Crystal Phillips:

I don’t believe that anybody is a loser. I feel that the change has sort of equalized the rights with this new law, especially when it comes to unmarried couples when they have a child out of wedlock.

Howard Iken:

All right. So let me follow up on that, Crystal. If a child was born out of wedlock and the week that follows, is there one party that has all the rights during that week and the other party has no rights?

Crystal Phillips:

No. No, it’s equal. So both parents have all the rights. Before, the fathers did not have rights. The mothers had almost 100% of the parental responsibility and also the rights given to the parents.

Howard Iken:

And was that, you said father and mother, so are you saying primarily it was the men that lost out in out-of-wedlock situations?

Crystal Phillips:

Yes, before the change, absolutely. I feel this is a big win for fathers.

Howard Iken:

Michael, do you agree with that?

Michael McGinn:

I agree. A lot of times we saw in the past people would call us for a consultation and say, “Hey, I’ve got this big child support payment that the Department of Revenue came after me for and the mother’s not letting me see the child,” or my child. And you’ve had to explain to him, well, just even though paternity was established for the purposes of child support, you still don’t have parental responsibility and time-sharing. So a lot of fathers were just stuck out there paying child support and with no rights, legal rights to their child. So it definitely, these changes have helped unwed fathers.

Howard Iken:

So Jeana, was this a huge win for fathers?

Jeana Vogel:

I don’t think it’s a huge win. I definitely think it’s in the right direction. I think it’s a win for fathers, but mothers still get the advantage. And delving deeper into the statute, you still need an affidavit signed by both parents to acknowledge paternity. Only once paternity has been acknowledged either by affidavit, by an adjudicatory hearing, or by a court order, then can you seek to have parental responsibilities and timesharing.

But once paternity is established, all it gives to fathers is that you are now the natural legal guardian of the child. So what does that mean? We haven’t really seen it play out yet. What it likely means is, “Hey, I can call the doctor and I can get medical records. Hey, I might be able to make a medical consent.” But will it authorize the police not to take the child from you and return it to the mother if you haven’t otherwise gotten a court order establishing parental responsibility or time-sharing? That’s left to be seen. I mean really it’s up to the authorities on those things.

My bigger concern here also is child support, can still establish child support and they don’t have to adjudicate parental responsibility and time-sharing. So there’s no way the-

Howard Iken:

That’s my next question. Yes..

Jeana Vogel:

Yeah. So I mean the win is in the right direction, but I can’t really see that there’s a huge change for fathers based on this statute. It’s a whole lot of words without a whole lot of impact for us.

Michael McGinn:

I’d like to add something to that. I have a pending right now. It’s a paternity case between a two unwed parents. And prior to this law going into effect, the father took the child from my client and refused to return them. We filed a paternity action and also sought to have the child return to the mother. And I cited the old statute, the one where unwed mothers are the natural guardians. And a judge here in Hillsborough County agreed with me and said the child needed to be returned.

We later established paternity and we’re working on a parenting plan. But under that situation now, the court would say, “Well, the father’s also the natural guardian once we establish paternity.” And in that case, the court can at that time say, as did the judge in Hillsborough County in this case, establish paternity at that hearing. He’ll ask both parties, “Are you the father?” And then, “Is he the biological father of the child?” And they’ll usually then, “Well, I’m going to go ahead and establish paternity.” So in that situation, I think the court would give pause at that point and say, “Well, if we acknowledge or establish paternity here, the father is now considered a natural guardian of the child as well.” So.

Howard Iken:

All right. So looks like the men have scored a little bit of a win here, but it’s not going to be a no-brainer going on. There’s still some work. There’s still some court action. There’s still some attorney labor to be taken. Do you agree with that Crystal?

Crystal Phillips:

I do agree with that because the court still has to establish the extent of the parental rights. So the court would still need to establish a parenting plan and to be able to define the time-sharing between each of the parents.

Howard Iken:

Okay. Let’s talk about the dissolution statute, which most people just think as the divorce statute. The new law has a change that says initially judges should give equal parenting time. That’s what it appears. What’s your take on that, Jeana?

Jeana Vogel:

I think it’s a good presumption to have that parents, start off equal, and then only by a preponderance of evidence can you vary from that, and the focus is still in the best interest of the children. But I mean in actuality, most districts in Florida have been following that anyways, so it’s not a huge change. It’s just kind of codified what the courts have been doing via case law.

Howard Iken:

Michael, are there still some judges prior to this law that were very old-fashioned and considered women the proper place for children?

Michael McGinn:

Yeah, in one of the co counties that I practice in, there are still some judges that, I believe favor the mothers or the wives in time-sharing issues. So I think this will help fathers in counties that have been a little less progressive as far as this goes.

Whereas judges in Tampa, I had a judge in Tampa say before a trial on some time-sharing issues, “We’re way beyond every other weekend. We’re going to get somewhere closer to 50-50 unless I hear something terrible about one or other of the parents.” So.

Howard Iken:

Okay, I’ve noticed the evolution of statutes over many years. I remember when we called one parent the primary parent and the other secondary, and we got rid of those designations and replaced them with the majority parents and the non-majority parents. It seems like things have really progressed over the years.

Crystal, to men deserve this change. Have they earned it?

Crystal Phillips:

I do believe that. Yes, absolutely. It’s about good fathers too, and encouraging time-sharing with the children. That’s in the best interest of the children, too. So the children really need to have a relationship with the father, and I think that this is going to help encourage that further.

Howard Iken:

Jeana, do men deserve this?

Jeana Vogel:

Oh, I think men deserve it across the board. I think you find in cases where you have a mother who’s kind of lacking on her responsibilities, there are some cases where fathers are lacking on their responsibilities, but to come to the court on an equal footing I think is what’s necessary. And then let it diverge from there.

Howard Iken:

All right. Quick question for everyone. Will these changes all put together cause less money to be spent on legal efforts or more or the same? Crystal, quick opinion on that.

Crystal Phillips:

I think it will cause more because now the court needs to be able to define the exact rights of the parties.

Howard Iken:

Michael.

Michael McGinn:

I think in certain circumstances it’ll cause less, because now you approach a client who’s coming to you and saying, “Well, this is what I want for timesharing.” You can say, “Well, the court’s going to start at a presumption that it’s 50-50 and go from there.” And if they say they don’t want the other parent to have an equal timeshare, well then you’ve got to say, “Well, what evidence do you have that we can present to the court that it’s not in the best interest of your child or children for the other spouse to have 50-50 time-sharing?” So I think it will in some circumstances cause less litigation. And then so fewer attorney’s fees and costs.

Howard Iken:

Jeana, your opinion.

Jeana Vogel:

I agree that it’s going to cost less in some circumstances. And we also haven’t mentioned the part of the statute that says, “It’s now deemed a substantial change in circumstance if you move within 50 miles.” So you can modify if the parent lived further away, had a long distance. Now it’s presumed it’s a modification if you move closer. So yes, on the 50-50, on that, less. But I think there is a chance for more litigation because mothers are going to be upset if a father is deemed a natural guardian, and let’s just say somehow or some way they do an affidavit and now he has the child, but no parental responsibilities established, a police officer refuses to give the child back to the mother. Mothers are going to be filing more paternity actions, I think, than just fathers, given the new paternity statute.

Howard Iken:

All right. You touched on relocation and there does seem to be a major change on that. So it appears now that when two parents are in separate states, for example, in the most extreme case of relocation and one wants to move closer to the other, it’ll be easy to open the case back up and modify the parenting plan. Do you agree with that, Michael?

Michael McGinn:

Yes, I do. Now it’s as Ms. Vogel stated, now you don’t have to show, or it can be considered a substantial change of circumstances, the court still has to go by the best interest standard for the child, though. If the court believes even relocating closer than 50 miles is not in the best interest of the child, they’re not going to change the parenting plan or modify the parenting plan. But I think it does help now and makes it easier for parties who decide to move closer to their children. It will help them modify the parenting plan, yes.

Howard Iken:

Crystal, easier or harder to relocate and modify now?

Crystal Phillips:

I think it’s easier. I agree with what Mr. McGinn said.

Howard Iken:

All right, Jeana, your take.

Jeana Vogel:

Easier to move closer. No change to move further.

Howard Iken:

All right, so let’s do a real quick round here. All these changes that are in place and are effective right now, is it a good thing for the citizens of Florida or a bad thing, Crystal?

Crystal Phillips:

It’s a good thing, yes.

Howard Iken:

Michael?

Michael McGinn:

I think it’s good, but there are some question marks out there. As with all new legislation, there’s going to be litigation and cases that are going to have to go to the appellate courts to decide what these laws actually mean and do. So I think looking at it overall, I think it is a good thing though.

Howard Iken:

Jeana?

Jeana Vogel:

I think it’s a step in the right direction.

Howard Iken:

All right. Michael, you mentioned appellate law. So I know what you mean is cases will go to be appealed and it will be a while before appellate judges decide exactly what the new law means. So how long will that process take?

Michael McGinn:

It can take a while. From the time an appeal is filed to a decision, some courts take a year, some take six months. It just depends on the backlog at the appellate court level. They have a lot of cases to go through and an appeal takes quite a while. So we probably won’t see those decisions for a while. And then at that point, you can then go back to a trial court if you have a similar circumstance and say, “Well, this is what the appellate court did in this case,” and it’ll help in future litigation. So all attorneys and judges then know what it means according to the appellate court.

Howard Iken:

All right. Summing all this up, I think this is a huge, huge change in parenting rights. It’s the logical conclusion of what’s been going on for decades, but this is the equivalent of a grenade being thrown into the family law rules of court and rules that guide each case.

Crystal, do you agree with that assessment?

Crystal Phillips:

I do agree with that, yes sir.

Howard Iken:

Michael?

Michael McGinn:

Yes, it is a big change. I haven’t seen something of this magnitude in a long time.

Howard Iken:

Crystal?

Crystal Phillips:

Yes.

Howard Iken:

Oh, I’m sorry. I already asked you. Jeana, I’m sorry.

Jeana Vogel:

Yes, I think it’s a huge [inaudible 00:16:28].

Howard Iken:

I’m dazzled by the new law. Exactly.

Jeana Vogel:

Yes, I do. I think it’s a huge change for our courts. Now, whether or not with outside the court, a huge change is questionable, but definitely for our courts.

Howard Iken:

All right. And are any of you seeing clients aware of this and starting to ask questions?

Jeana Vogel:

Definitely. I had a couple of consultations where the mother was extremely upset with me, me trying to explain the new law and not being able to have answers as to what it means before a court action is filed.

Howard Iken:

All right. Any other comments?

Michael McGinn:

I’ve had a client. I had a paternity case that was pending prior to this law. It’s still pending. We actually had mediation earlier this week, and I explained to her before the mediation, we’re now at the point where 50-50 is the presumption, and she wasn’t really happy about that, but that’s something we have to now deal with.

Howard Iken:

All right. I think we’ve summed it up pretty well. It’s a huge change in parenting law in the state of Florida. I think it has the potential to affect a very large percentage of the families in the state of Florida, and it is not getting the attention it should because it is turning family law on its head. It will affect just about every case, certainly every case with children.

I appreciate the very expert opinions being given by each of you. And anyone viewing this video, I want to remind them, the law firm of Ayo and Iken does give free attorney consultations, and I would encourage you to set an appointment and talk with one of our attorneys about how these changes will affect you.

Thank you very much, Crystal, Michael, Jeana. Thank you for gathering here this morning, and I hope you have a great day.

Crystal Phillips:

Thank you. You too.

Michael McGinn:

Thank you