School District Designation and School Choice: Decision-Making Deadlock

One of the biggest battles in family court, aside from time sharing is school district designation and/or school choice for the child. In Florida, when a parenting plan gives parents joint parental responsibility, one category of major decisions co-parents must make together is educational decisions. Both parents must agree on the child’s school district designation, otherwise the court must decide the designation based on the child’s best interests. School district designation refers to which parent’s address will be defined in the parenting plan as determining the child’s default zoned public school. School choice refers to alternative school enrollment options such as magnet schools, private schools, charters or open enrollment.

Once it is established legally, which parent’s address will be used for school zone designation, if that parent moves to a new neighborhood, the child is not automatically enrolled in the new school district. The previously designated school remains the official designation unless both parents agree to the new school, or the judge approves a change in the designation. Under Florida Statute §61.13, when parents have joint parental responsibility, neither parent can unilaterally change a child’s school and doing so when joint parental responsibility has been legally established can be grounds for contempt.

If parents do not desire to have their child attend the zoned public school, they may want to pursue Controlled Open Enrollment to apply for a school outside of their district. Controlled Open Enrollment required applying in a timely manner to the charter school, specialized program, magnet school or a neighboring district. When parents have joint parental responsibility they are required to both consent to applying to and accepting a school choice transfer.

What happens when the parents cannot agree on the school designation or school choice? The first question is whether the parenting plan already contains a provision for what happens if parents cannot agree on school choice. Some parenting plans have a “tie breaker” clause which would designate one parent with the final decision-making authority to make educational decisions when the co-parents cannot agree. If there is no tie breaker provision in place and the co-parents cannot agree on the school then the court can make the decision on which parent to designate as the ultimate decision maker for education purposes. In making this decision, the court will consider the child’s best interests, the quality of the available schools and proximity to the parent’s homes. One very important distinction to make is that the court considers the best interests of the child; the convenience of the parent is not the court’s primary concern.

Factors the court may consider include the child’s individual learning needs, the preference for keeping children in a school they are already established with and familiar with, which parent can provide a better quality of school, transportation logisitics (such as whether the school is within one or both parent’s zone for school bus transportation or not), and whether the school offers programs tailored to any particular needs of the child (such as an IEP program or IB program). If one parent wants the child to attend their zoned school and the other parent wants to apply for school choice, the analysis is similar, however the court will consider which choice serves the child’s best interests and will consider factors such as commute times, proximity to the time sharing schedule, and quality of the school choice school versus the zoned school.

Lately, more and more parent’s are considering homeschooling as another possible option for school choice. When parent’s cannot agree on whether a child should be home schooled, the court will apply the same analysis, considering the best interests of the child. Homeschooling disputes can be particularly contentious when one parent will serve as the sole educator. A large part of the court’s consideration of the child’s best interests in determining whether ultimate educational decision-making should be awarded to the parent seeking to homeschool, is the quality of the home education. The parent must show that the state’s home education laws have been met and that the education being provided is of sufficient quality.

Co-Parents are strongly encouraged to try to resolve school designation and school choice issues where possible, before seeking court intervention. If you are facing a deadlock in education decision-making with your co-parent, contact Cody Law, to discuss all of the nuances to this issue and explore possible options to resolve the matter.

Divorce and Equitable Distribution of a Corporation

When spouses divorce, marital assets and debts are divided equitably. Typically these marital assets include real property, bank accounts, retirement accounts or personal property. But what happens when spouses own a corporate business? The company and its assets are subject to equitable distribution just like any other type of marital asset under Florida Statutes § 61.075.

The first step is to determine whether the corporation is a marital asset. Absent a prenuptial or post-nuptial agreement stating otherwise the general rule is as follows: If the business was acquired or created during the marriage, then typically it is considered a marital asset subject to equitable division. If the business was acquired or created prior to the marriage date, then typically only the increase in value of the business caused by marital labor or marital funds during the marriage will be subject to equitable division.

Typically the court will determine the company’s fair market value and award the company to one spouse, balancing the division in the equitable distribution of other marital assets. When spouses own interest in the business together, the court will not order them to continue to operate the business post-divorce unless both spouses agree.

Corporation as a Party to the Divorce

A critical consideration to make in a divorce involving a corporation is whether the corporation itself should be joined as a third-party defendant to the dissolution. The decision regarding whether to add a business as a third-party will depend on the type of business entity at issue and the spouse’s claim against the business entity. If a spouse is seeking equitable distribution of property or real property owned by a corporation, then joinder of the corporation is imperative as the family court does not have jurisdiction to adjudicate the property rights of non-parties. See Ray v. Ray, 624 So. 2d 1148 (Fla. 1st DCA 1993).

Adding the corporation as a third-party to the divorce allows the court to have jurisdiction over the corporate entity and to issue orders regarding corporate assets. This can enable the court to compel discovery of the company’s financial records and enforce transfer of shares. Bear in mind that a business can be equitably divided without the necessity of adding the corporation as a party, however if the corporation is not added as a party to the action, the family court will not have jurisdiction to order that corporate assets be transferred as part of the equitable distribution. The corporation should be joined as a party in scenarios where both spouses have access to corporate books, checkbooks, bills and when personal expenses are paid by the corporation.

If the decision is made to add a corporation as a third-party defendant in a dissolution, the spouse joining the corporation must ensure proper service of process on the entity and that there is a basis for personal jurisdiction over the entity. If the business is a foreign entity, the Florida long-arm statute must be satisfied.

Joining a corporation as a party may not be necessary when a party is not requesting a claim against the corporate entity or an unequal distribution in any of the corporation’s property. If the corporation is not added as a party, the court still has the power to prevent the disposal of corporate assets or stock to a third party.

Valuation of the Business

If both spouses work for the business, the contribution of their labor, time and skills and the appreciation of the business value during the marriage makes it highly likely that the corporation will be considered a marital asset.

When one spouse holds a smaller percentage of corporate shares or membership units in the business, Florida courts primary focus is still on the marital nature of the asset rather than the legal ownership structure. The amount of units or shares does not automatically dictate how the value of the asset is divided. The spouse owning the majority of the shares or units may however retain the operational control of the business during the divorce process, however the minority owner still has legal rights to prevent the majority owner from hiding assets and to inspect corporate books, tax returns, and financial registries.

A final note regarding valuation of a business in a divorce is that Florida courts must be careful when balancing the business value and awarding alimony. If the corporation’s income is used to calculate the value of the business (which is then divided), that same income stream cannot be fully counted a second time in calculating alimony. A forensic accountant may be required to separate the business’s true asset value from the personal income it generates for each spouse.

If you and your spouse are facing divorce and one or both or you own a business, you should consult with an experienced Florida family law attorney, to determine how best to handle joinder and valuation of a business as a marital asset. Contact Cody Law to discuss this or any other Florida family law needs.

What Should a Stellar Parenting Plan Include?

Every paternity action or divorce involving minor children in Florida must establish a Parenting Plan. But what exactly is a Parenting Plan and what should a good one include? A parenting plan is a legally binding document that governs all rules that the parties must follow regarding parental responsibility and time-sharing in all child-related matters. Parties can establish a Parenting Plan through agreement (usually following negotiations or a formal mediation), or by presenting evidence at trial, resulting in a court order by the Judge. All terms and conditions in the resulting Parenting Plan must be in the children’s best interests.

Florida Statute §61.13(2)(b) provides a basis for what a court established or a court approved Parenting Plan must contain:

1) a description in adequate detail of how the parents will share and be responsible for the daily tasks associated with the upbringing of the child.

2) a time-sharing schedule that specifies the time the child will spend with each parent.

3) A designation of which parent (or both) will be responsible for healthcare, school-related matters, and other activities.

4) A detailed description of the methods and technologies each parent will use to communicate with the child.

5) The location of exchange of the child for time-sharing purposes.

These provide what, at a minimum, needs to be included for a valid parenting plan, however it’s important to understand that a parenting plan can be as detailed as the parties want to make it. Often times, having a detail oriented plan can avoid future uncertainty and ambiguity and reduce the risk of parties rushing back to court to litigate issues. Parties should keep in mind that as the children grow, the plan should grow with them. Children may not be school aged at the time the Parenting Plan is prepared, but a stellar parenting plan will plan for and address issues ahead of time. Good parenting plans include specification of how the co-parents will communicate with each other, details regarding travel and transportation, choice of activities and payment for extra-curricular activities, which parent’s address will be used for school zone purposes, detailed holiday time-sharing plans (including holidays and events that may be important to your specific family), and a procedure for vacation travel and planning with the children. You should discuss your family’s specific needs with your attorney to establish a Parenting Plan that works the best for you.

Contact Cody Law in St. Augustine Florida if you’d like help navigating a Florida family law issue and designing a parenting plan that addresses the needs of your family.

All About Extracurriculars

Parents of minor children who are facing a divorce or paternity matter often ask how to handle extracurricular activities. When seeking a paternity order or a dissolution of marriage with minor children, the end result is that a parenting plan is entered into. The parenting plan can be as detailed as the parties desire and should include as much detail as possible, particularly when there is a potential for conflict down the road. One detail a parenting plan will typically include is a section addressing how extracurriculars are to be handled.

Extracurricular activities are not factored into the calculation of child support. Payment for extracurriculars is addressed separately under the extracurricular provision in the plan. Most parents choose to include the provision that the cost of agreed upon extracurriculars will be split 50/50 between each parent. If there is a disparity in income or the case is contested then the costs of extracurriculars may be split according to the parties’ pro rata share of responsibility for child support.

The provision will typically state that the parents should attempt to agree regarding any extracurricular activities and when the parents cannot mutually agree, then one parent may unilaterally enroll the child during their timesharing and bear the full cost, including associated costs such as uniforms and costumes. A good parenting plan should also detail who will be responsible for transportation to and from each activity. If parents know that a certain activity is going to be a cause of conflict in the future, they can address it in the parenting plan in advance. For example, parents may want to specifically provide for, or limit or restrict travel sports, or sports they consider dangerous. They may also choose to agree on a set limit of how many extracurricular activities a child should participate in each year.

In general, the nature of a lot of extracurricular activities means that practices, lessons or events will occur during both parent’s time. However, parents should avoid unreasonably infringing on the other parent’s time with the child to avoid ending up back in court. When issues arise involving extracurricular activities the court will always consider the best interests of the child in resolving disputes. The best case scenario for parents is setting aside personal differences with the other parent and considering what the child enjoys and wants to participate in, rather than unreasonably refusing to agree on an extracurricular activity.

If you are facing challenges with this issue, or any other family law matter please reach out to Cody Law for a consultation.

Reasons why Equal Timesharing May be Denied in Court

After recent changes in Florida family law. Florida courts now begin with a rebuttable presumption that equal timesharing with each parent is in the best interests of the child. Either party can offer evidence to show why equal timesharing is not in the child’s best interest. The Court has a long list of “Best Interest Factors” it considers in making this determination. Four of the biggest reasons that a court may rule equal timesharing is not in the child’s best interest are:

• Substance abuse and alcohol abuse

  Abuse of alcohol or drugs by a parent is one of the reasons equal timesharing may be denied. Alcohol or substance abuse puts the child in danger and can significantly impact the parent’s ability to meet the child’s needs.

• Emotional or physical abuse or neglect

  Parents who abuse or neglect their child are considered unfit. Child abuse can be physical, emotional or sexual. Child neglect occurs when a parent fails to meet the needs of the child. This can include not providing proper hygiene, living environment, food, clothing, education or medical care.

• Parental alienation

  Parental alienation occurs when one parent engages in behavior to sabotage the relationship between the child and the other parent. This can be done through actions such as disparaging the other parent in front of the child, emotionally manipulating the child to take sides, or preventing the other parent from having contact with the child without justification. If parental alienation is shown to be serious enough, the alienating parent could lose custody of the child.

• Serious mental illness

  In certain instances, if mental illness is severe enough to affect one parent’s ability to properly care for the child it could result in a loss of custody. There is no set list of mental illnesses that affect custody but the court will consider the parent’s ability to meet the child’s needs.

This is not an all inclusive list and you should consult with an attorney who will consider your specific circumstances and discuss whether parental responsibility and timesharing may be allocated unequally in your case.