SUBSTANTIAL CHANGE IN CIRCUMSTANCES IN TIME-SHARING CASES-NOT ALWAYS AN EASY HURDLE TO OVERCOME

 

            In the State of Florida, once the Court has entered a Final Judgment regarding a dissolution, paternity or child support case, and a party seeks changes to the time-sharing decision (or even the child support amount), generally a Petition for Modification must be filed with the Court.  In order to prevail on the initially filed case regarding time-sharing determination, the Court made its decision based upon the best interest of the child.  Not so for a modification action.  In order to prevail in a modification action, the party seeking modification has the “extraordinary burden” of proving a substantial change in circumstances occurred since the previous Final Judgment that warrants modification of the Final Judgment.  After overcoming this burden, the party seeking modification must then show that the modification would be in the child’s best interest.

 

            The Florida Legislature and the Florida courts have defined a substantial change in circumstances to be one that is substantial, material, unanticipated at the time of the Final Judgment, and permanent in nature.  See Fla.Stat. 61.13(2)(c).  The moving party must prove each and every one of these elements to prevail.

 

            There are many instances where the courts have determined that a substantial change in circumstances did not exist, thus proving my point that this is not an easy hurdle to overcome.  For example, temporary changes in the child’s living arrangements (i.e. child used to live with the mother for a majority of the time, but the parties agreed that for the next school year the child would live with the father) is not a substantial change in circumstances.  See: Smoak v. Smoak, 658 S.2d 568 (Fla. 1^st DCA, 1995) and Evans v. Evans, 490 So.2d 1035 (Fla. 1^st DCA, 1986).  The courts have also held that a modification cannot be based solely on the parties’ informal agreements (when the mother permitted an additional overnight visit) as this would discourage parents from making decisions in the child’s best interest.  See.  Sidman v. Marino, 46 So.3d 1136 (Fla. 1^st DCA, 2010).   Often, even when one party relocates, the Court still find this is not enough for a substantial change in circumstances.  See: Halbert v. Morico, 27 S.3d 771 (Fla. 2^nd DCA, 2010) (denied modification action that was filed when father moved 45 minutes away) and Ragle v. Ragle, 36 Fla.L.Weekly D 1790 (Fla 1^st DCA, 2011) (holding that mother’s move 28 miles away, coupled with parents’ inability to effectively communicate, was not a substantial change in circumstances).

            However, the hurdle can be overcome.  The Courts have held that parental alienation, coupled with contempt and violations of shared parental responsibility are enough to meet the substantial change in circumstances test.  See: Wade v. Hirschman, 903 So.2d 928 (Fla. 2005).  But, be wary, as a finding of acrimonious relations and inability of the parents to communicate effectively is not in and of itself a substantial change in circumstances.  See: Perez v. Reveiz, 50 So.2d 3^rd 101 (Fla. 4^th DCA, 2010).    

 

            If you are currently going through a dissolution action and are able to settle your case, placing certain circumstances that the parties’ agree to be substantial change in circumstances will likely be upheld by the Court (i.e. prohibiting relocation outside the state, stating that once the child starts school, the parties agree this will constitute a substantial change in circumstances, etc.).  See: Segarra v. Segarra, 947 So.2d 543 (Fla. 3d DCA 2006).

            Due to the complex nature of modification actions, it is highly recommended that anyone looking to file such an action obtain legal advice regarding same.  Our firm represents clients in family law matters, including modification cases, in Broward, Miami-Dade and Palm Beach Counties.  Therefore, if we can be of assistance to you, please feel free to contact us at (954) 316-3496.

 

Law Offices of Cindy S. Vova, P.A.

Pine Island Commons

8551 West Sunrise Boulevard

Suite 301

Plantation, FL 33322

954-316-3496 (office)

954-316-3056 (fax)

cindyvova@vovalaw.com

info@vovalaw.com

 

 

The Social Media Wars in Family Law Litigation

 

            Social networking sites, e-mail, and text messages are used constantly to obtain evidence in family law actions.  As such, it is important for any person engaged in a family law case to consider taking the following precautions as it relates to social networking:                     

 

TIPS FOR SOCIAL NETWORKING SITES

 

            1.         Maximize Your Privacy Settings.  You should make sure that your privacy settings are not open to the public.  Also be weary about even having privacy settings that are set to “friends only”.  It is often people that are considered friends who provide evidence to the opposing side. 

 

            2.         Be Conservative On Your Postings.  You need to think about what you are posting before you post it.  Ask yourself, could the other side use this post against me.  Blatant examples of what not to post including adult party pictures (do not post pictures of your friends and/or you drinking, smoking, dancing erotically, etc.; do not discuss the case online; do not post negative comments about the judge, the attorney, the spouse or anyone else involved in the case).  My favorite rule of thumb is if it is not something you would be proud of if your mother discovered it, do not post it!

 

            3.         Watch Social Media Check In Applications: It is generally not a good idea to have GPS tracking media active during family law cases.  These types of media often automatically post to certain sites and may be used against you in various ways, especially in highly contested child custody or alimony cases. 

 

            4.         Farmville Can Hurt You: Games that automatically post to your social media sites like Facebook can be used against you.  For example, if you are unemployed and your spouse is looking to have you held in contempt for failing to pay your child support, proof that you are playing Farmville all day, rather than seeking employment, can be detrimental. 

 

            5.         Change All Your Passwords: Often noone knows you better than the other side in a family law case.  They often know every website you visit and every password you have created.  That said, immediately change all your passwords for every social network site you are on (Facebook, Foursquare, Twitter, LinkedIn, My Space, etc.)  When you change your passwords, do not use something the other side can easily guess.  Remember, they know you well.  Your child’s name, pet’s name, etc. are not good passwords.  Use something that has no relation to your everyday life and would be hard to guess.

 

TIPS REGARDING E-MAILS

 

            1.         Obtain a Separate Litigation E-mail Address: The other side likely knows your e-mail address and your password, and while they should not be doing so, they may be monitoring your e-mail account.  Additionally, there has been a lot of discussion about whether or not a person has an expectation of privacy for an e-mail account.  The best rule of thumb is to create a separate e-mail account for your litigation case.  All e-mail with your lawyer and the other side should go through this e-mail address.  Do not use this e-mail address while at work, at a hotel, a friend’s home, public library, etc.  Using public places to access your e-mail has the ability to make the e-mail admissible in court.

 

            2.         Change Your E-mail Passwords: Immediately change all your passwords for every e-mail account you have.  Do not change passwords to joint e-mail accounts, if any exist-just stop using that account.

 

TEXTING AND CELLULAR PHONE TIPS

 

            1.         Minimize Texting: We often text without thinking, especially to those we consider friends and family.   Too often, these friends or family members either purposefully or inadvertently give this information to the other side.  Therefore, think before you text, and keep the texts during this difficult time to a minimum.  Also remember, the other side will happily turn over any nasty texts to the Court.  So always, always, always be respectful and courteous when texting or e-mailing the other side, no matter how nasty their e-mails or texts are to you.

 

            2.         Reconsider Your Cellular Phone Plan: If you have a family plan with the other side, you may want to consider contacting your provider and getting a separate account for yourself.  If the other side has access to your texts, call records, and tracking records, this information may be used as evidence in court against you.  Also, it is a good idea to use a provider that does not maintain records of the texting that you send and/or receive.  Certain carriers keep texting records.  Check with your carrier.  If they keep these records, you may want to consider switching.  Also, certain providers provide detailed invoices that show every phone call you make.  This is sometimes helpful and sometimes harmful.  Check with your provider to see what type of records they have and keep this in mind when using your cellular phone. 

                                                           

OTHER IMPORTANT TIPS

 

            1.         Be Wary of Spyware: Too often the other side plays dirty.  They attempt to illegally access your information.  While this is often a crime, it is often hard to prove, or not worth the government’s time to prosecute.  Even though a court should exclude all evidence not legally obtained, this is not always the case.  So just be careful and aware that this could occur.

 

 

            2.         Consider Your Own Actions Carefully: Consider your own actions.  Make sure you are not illegally accessing information.  If you know the passwords to the other party’s accounts, you know that person no longer gives you permission to look at their accounts.  Accessing these accounts without permission may be a crime.  So be careful. 

 

            3.         Electronic Evidence Is Not Easily Destroyed: Electronic evidence is often recoverable, even if deleted, especially through the use of forensic experts.  Thus, if you are required to produce these documents, and you attempt to hide them, if they are discovered, your credibility with the Court is shot.  A better practice is to simply not create the electronic evidence in the first place.  By following the steps listed above, this should help you in that regard.

 

            4.         Changing Account Numbers: Certain information that you one wanted the other side to have, you may no longer desire them to have.  Consider all accounts that the other side has access to (i.e. account numbers and security codes for bank accounts, brokerage accounts, credit cards, cellular phones, etc.)  You may wish to speak with your attorney regarding whether it is prudent to change these numbers.  But remember, it is usually not a good idea to change joint account numbers and security codes, especially with consulting your attorney and the other side first.  Also keep in mind that any activity performed in the joint account can be introduced as evidence before the judge.  

 

            5.         Keep a Calendar or Log: You may remember everything being posted, texted or said at that moment.  Maybe even days or weeks later.  But family law actions can take months, even years, to resolve.  Therefore, it is important that you keep a calendar or log of the events and statements that you believe are important evidence for your case.  Keeping a calendar or log can go a long way to establishing that your recollection or memory of the events is accurate, and make your attorney’s job easier (thus costing you less money in attorney’s fees and costs). 

 

            Our firm assists clients with their family law needs in the South Florida area.  If you have any questions regarding a family law matter, please feel free to contact our firm. 

 

Penny Taylor-Miller, Esq.

Cindy S. Vova, P.A.

8551 W. Sunrise Blvd.

Ste. 301

Plantation, FL 33322

   

 

                                     No Pleasure Cruise for Tom and Katie...Suri to Feel the Wake

 

              As sure as the rites of summer, last week our papers swelled with the news of yet another celebrity divorce.  This time  the always front page marriage of  Katie Holmes and Tom Cruise took center stage, and will likely remain there for some time to come. Katie, after nearly six years of marriage, filed for divorce in New York...while Tom was, of course, out of town filming in Iceland (Iceland????) a movie, perhaps aptly titled "Oblivion."

   

                  Of course, the usual economic issues rise to the top...apparently Tom made $75 million last year, while reports say Katie only eked out a meager $3 million. (What percentage of that sum the formerly happy couple will get the  pleasure of handing over to their carefully assembled team of divorce attorneys one can only imagine)  According to TMZ.com, Katie is not concerned about getting Cruise's money (though it is intriguing and, perhaps coincidental that reports just listed Cruise as the highest paid actor last year)  Apparently, a prenuptial agreement will govern most of the economic issues...though stay tuned to see if either party's attorneys find grounds to challenge that document.  

 

            The real headline grabber, however, seems to be their six-year old daughter, Suri.  According to new reports Katie is seeking sole custody (a term that, for all intents and purposes, disappeared from Florida laws several years ago as the state acknowledged kids are not "things" that one should have custody of).  It appears, however, that Katie wants to get Suri away from Tom, period, or more aptly, away from Tom's association with the  Church of Scientology.   Now it appears that's Tom's affiliation with the group, religion, cult, sect...whatever you want to call it, existed well before the Katie and Tom union.  "So...?"you ask.

 

            New reports cite Katie's concern that Tom wanted Suri shuttled off to the Church of Scientology's 700 acre Southern California desert compound. According to former Scientology members, including, Amy Scobee, who followed the late L Ron Hubbard’s teachings for 27 years, was quoted in London's Daily Mail, as stating that  a myriad of abuses constituting violations of civil and human rights, and tantamount to slavery occur occurred at the Gold Base Sea Org.  Wow...now that's what I call a boot camp.  Did anyone ever say the kid was so misbehaved?

 

         Now, I don't portend to know about Scientology, nor, for that matter willingly learn about it.  However, Cruise's involvement with the group, and how it affects little Suri, nobody can accurately predict at this stage.  Nonetheless, there's that little thing in this country called the Constitution, and specifically, the  First Amendment, giving all people the freedom of religion.  As such, the Courts (and that includes the state of New York ) cannot impinge on anyone's religious freedoms nor can a divorce court compel an individual to make him or her have a child practice one faith or bar the parent from having the child participate in another faith.  In essence, based on religion alone, Katie cannot keep Suri from Tom. 

     

             As this case unfolds, anyone who follows the news, myself included, will, whether wittingly or unwittingly, learn more about Scientology.  Perhaps Katie's legal team will challenge whether Scientology is really a religion (though the First Amendment also protects free speech and self expression).  Of course, if the allegations of human rights violations prove true then, religion or not, the Court's first concern is to protect children, so absent cooler heads prevailing (almost an oxymoron in a divorce) the not-so-pleasurable Cruise  is likely to continue for some time. (Personally, I’d rather be on Royal Carribean’s Allure of the Seas!)

    

         What lesson can we glean from with what now will not be a "happily- ever- after" ending?  It's simple...one's beliefs travel with the person.  They do not stop at marriage.  So, if your mate-elect affiliates with a group, practices a religion (even a more "mainstream" one), grew up in a culture, etc. where the belief system, values, customs and traditions are vastly difference than those of your past, and more importantly, those of your present beliefs, values, customs, etc. what makes you think this will create an environment  compatible with how you want to raise your children?  (Hint...it will not).   Although love may cloud these issues in the beginning, I know as a divorce and family law attorney for nearly 28 years, when the love leaves, these differences take on gargantuan proportions in divorce wars.  I see it not where one partner claims the other belongs to a cult.. but in cases where one partner's beliefs and practices simply do not meld with the other's!          

 

       It's too late for Katie.  For those contemplating spawning and marriage, think before you ink that marriage contract.   Whether you need a prenuptial agreement or post nuptial agreement, or whether you are married or have children and aren’t married, and can't come to a common ground, the Law Office of Cindy S. Vova, P.A. is dedicated to helping you come to a peaceable resolution of your family law situation.  For us, there is no "Mission Impossible."

 

       A happy 4^th of July to all Americans who have their freedom, and a big thanks to those men and women in uniform who help keep it that way!

 

Cindy S. Vova

The Law Office of Cindy S. Vova, P.A.

Pine Island Commons

8551 West Sunrise Boulevard, Suite 301

Ft. Lauderdale, FL 33322

(954)316-3496

www.vovalaw.com

info@vovalaw.com