A capable family law attorney must know both the “black letter” law and the informal, “behind-the-scenes” law that other lawyers, judicial officers, and administrators often practice. Nowhere in family law does such a sharp dichotomy exists between these two as in DCF child dependency cases. Chapter 39 of the Florida Statutes governs dependency cases, and I provide a brief overview of its major points on Department of Children and Families (DCF). However, I feel compelled to discuss in this blog the day-to-day practices of the most important player in dependency cases: DCF.

What You Need to Understand About DCF and Dependency Actions

First and foremost, if you’re a parent that is listed as a respondent in a DCF dependency action, you are not involved in a criminal prosecution, even thought the proceedings resemble criminal cases. No bail is ever set, and no prison sentences are ever ordered. However, the reality of being separated from your child, even temporarily, certainly feels like a prison sentence to a parent who is new to these proceedings. Furthermore, the DCF acts like the State Attorney’s Office in a criminal case.

Second, if you are assigned a sympathetic and reasonable case manager (which is rare), always remember that he or she is not concerned with your best interests, or even the welfare of your child. While your case manager might claim to be concerned with your child’s well-being, it is actually the Guardian Ad Litem (GAL).

Third, unless you have already consented to a case plan, case managers possess no authority to order you to do anything. They will often insinuate or outright claim that you have to subject yourself to a psychological evaluation, random drug testing, or a parenting class, but until your dependency judge issues an order stating this, you are free to decline their request. Chapter 39 grants offending parents a right to a fairly quick arraignment date, and if necessary, a trial. Only if you enter an “admit” or “consent” plea at the arraignment will you be mandated to complete a case plan, which often involves the aforementioned tasks. Keep in mind, however, that no matter how self-righteous and intimidating the case managers may seem, DCF still must prove in court with clear and convincing evidence that you have either (a) abandoned, (b) abused, or (c) neglected your child. As with criminal cases, you enjoy a presumption of innocence. I emphasize this because the harsh tone and rhetoric that many case managers use creates the false impression that the parent has already been found “guilty”.

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A litigant’s right to appeal a questionable judgment is well-ingrained in Anglo-American jurisprudence. In fact, appellate opinions, (not trial court’s rulings or even the statutes) constitute the bulk of family law. These opinions offer precise interpretations vaguely-worded laws, and govern how trial courts must rule. Yet, only a tiny percentage of all family law cases ever reach even the first level of appellate review. Why is that? For starters, many family law clients simply can’t afford the appellate process. More fundamentally, overturning an unfavorable final judgment requires many conditions to be “just right.” As a result, while the right to appeal is available to all litigants, most family law attorneys will only handle a small number of appeals during their careers, if any.

First, let’s examine the basic procedure for an appeal. A family law litigant has 30 days from the final judgment to file a notice of appeal (A few non-final orders can also be appealed, but for the sake of brevity, we will only consider final judgments). For example, if you are not happy about how the trial judge ruled in your divorce trial, you must file the aforementioned notice no later than 30 days after the signed final judgment is issued. If you fail to timely file this notice, you waive the right to appeal forever. Needless to say, a competent family law lawyer will advise his/her client of this deadline either right before or immediately after the trial. Furthermore, the appealing party must pay the initial filing fee along with the notice of appeal. The clerk of court will not accept the notice of appeal without an accompanying payment of this fee, which ranges between $250 and $300. Continue Reading

Despite the best efforts of mediators and attorneys to settle their divorce cases, trials are sometimes necessary. Whether the differences are a result of stubbornness, or the disputes are by nature, intractable, every litigant has the right to proceed to a trial. This is not a comprehensive review of the trial process, but her are some helpful insights for the family law client who is facing a trial:

The Unmatched Importance of the Judge

Unlike other civil and criminal trials, which mostly feature juries, family law trials exclusively rely on judges to make the final rulings. When you are preparing for trial with your family law attorney, you should ask him or her about your judge’s tendencies and inclinations. Of course, having an experienced family law attorney helps in this matter. Continue Reading

For family law attorneys, mediations represent the “bread and butter” of their divorce practice. While I have participated in over fifty divorce trials, the number of mediations I’ve been involved in is well into the hundreds. These numbers result from these two facts: (a) almost all family law cases entail at least one mediation because they are required by law before going to trial, and (b) the majority of family law disputes do not result in a trial because of the considerable advantages of settling the issues in the divorce at the mediation.

The venue and settings of a mediation explains why they’re generally effective.

First, the divorcing couple and their family law attorneys are finally present in one room with no distractions. The mediation forum presents the first opportunity for all of the players in the case to discuss openly the prospect of settling their disputes. In comparison, negotiations through e-mails and phone calls are inefficient and unreliable. Continue Reading

Family law attorneys face many unique challenges, some of which I have mentioned in past articles. But the “elephant in the room” that still needs to be addressed are attorney’s fees. In particular, I want to discuss why the fees charged by Florida family law attorneys are different from those of other attorneys. These are the three main forces that drive the way that family lawyers charge their fees and how AAA Family Law deals with them:

Family lawyers do not have a simple measure of the value of their service or standard service categories. This principle underlies all of all of the other factors. Family lawyers do not provide quantifiable services. We also do not have a menu of routine standard services to offer the way a typical automotive repair shop charges $19.99 for an oil change. No two divorces, paternity actions, relocations, etc., are the same. Some are much more complex than other and therefore, take more time. That is why the only measure we have left use for setting prices is how much time we spend on your case. Continue Reading

How to Work with Your Family Law Attorney

Family law, more so than other areas of law, requires communication and cooperation between the attorney and the client. Unlike other types of lawyers, family law attorneys must react to ongoing events and fluid situations. A client facing a DUI charge repeatedly discusses the same event to his attorney: the night he enjoyed a couple of drinks at the local watering hole and was pulled over while driving home.

Conversely, a divorce attorney deals with events during the course of the marriage, during the divorce proceedings, as well as future situations that may arise well after the divorce (e.g., the sale of the marital home or the date that child support obligation terminates for one of the parents). The breadth of facts that a family law attorney must be familiar with demands an open, honest, and harmonious attorney-client relationship. The family law client can take the following three steps to be sure of being on the “on the same page” with the attorney:

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Family lawyers (or divorce attorneys) in Orlando and everywhere else in Florida undoubtedly face unique challenges. In addition to providing legal advice, we are often called upon to act as therapists, sounding boards, and financial advisers. Because we wear so many hats, our advice to clients varies greatly. However, regardless of what you hire your family law attorney for, you should ask the following questions:

What is your level of specialized experience?

Family law has both breadth and depth. For example, a divorce may require a lawyer to analyze recent case law about time-sharing (child custody), draft a memorandum of law about the proper date of the valuation of a marital asset, and make compelling arguments about how much income a college graduate with a particular degree can earn. Each of these issues, by themselves, have generated dozens, if not hundreds, of appellate opinions that delineate the applicable rule of law.

Would you trust a “jack of all trades” lawyer (e.g., “your lawyer for life”) to appreciate all of the nuances and complexity of family law? Would you rely on your family doctor to guide you through a double-bypass heart surgery? Of course not.

For these reasons, if you have a family law issue, you should ask these questions of the lawyers you are considering:

(a) How much of their practice is devoted to family law?

(b) How many family law trials have they litigated?

(c) How often do they settle divorces at the mediation stage?

(d) How many of the local family law judges have they appeared in front of?

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