Child Custody and Parents Moral Fitness In Divorce and Paternity Cases
By Orlando Divorce Attorney Eduardo J. Mejias
Practicing Exclusively Family Law Since 2011
The Parents Moral Fitness Is Not As Important To The Law As It Is To The Litigants
Family law, by nature, is more personal than are criminal or civil laws. The litigants are not faceless entities like corporations or “the state”. They are spouses, or at least significant others, that once loved each other. Unfortunately, the mutual bitterness resulting from a couple’s divorce or break-up often spills over into the child custody litigation between them.
However, the clients' perceived moral fitness flaws of their spouses or partners will probably not seriously impact the outcome of their child custody litigation. However convincing a client is, it will be more difficult for a parent's character flaw to change the ruling of the family court judge than selling ice to Eskimos.
To help you prepare for a child custody litigation, I have listed below the reasons why family court judges do not give as much weight as do the litigants to the moral fitness of their soon-to-be ex-spouses or ex-partners. If you are facing a divorce or paternity case with minor children involved, this list will help you reduce the stresses associated with these cases.
Prior Bad Acts Are Not Admissible Evidence
Sometime clients, or even opposing attorneys, who should know better, want to produce evidence of a bad act that the other parent did to another child or spouse. The intent is to demonstrate that if he or she did it in the past, it will likely happen again.
But, Section 90.404 of Florida’s Evidence Code bars the admission of a litigant’s “prior bad acts” when evidence of a prior act is used to demonstrate the individual’s propensity to commit similar acts.
Thus, you will be expressly barred from talking about Joe’s harsh treatment of his son from his first marriage, or Jane’s neglect of her daughter from another relationship. While the aforementioned statute is more often cited in criminal cases, it is just as applicable in family court trials.
A Parent’s Moral Fitness Counts Only If Related To Harming the Child
Yes, it is true that a parent’s “moral fitness” is one of the enumerated factors under Section 61.13, Florida Statutes that a family court judge must consider when establishing a parenting plan. However, family law clients usually overestimate both its impact and its scope.
Keep in mind that each parent’s moral fitness is just one of 19 factors on this list and is no more important that the other 18. Furthermore, a parent’s vice or weakness (e.g., excessive drinking, drug use, smoking, adultery, mental condition, etc.), while it may have caused the end of the relationship, does not necessarily impact that person’s ability to be an effective parent. Numerous appellate opinions have required that a “nexus” (a direct link) be established between the vice or weakness and an actual detriment to the child.
A judge will not assume that because your ex-spouse gets hammered on guy’s night out at the local bar, that his child will be endangered in his presence. Conversely, if he is arrested for DUI while junior is in the car, that will have an impact on his time-sharing. This is a subtle, but crucial distinction.
Judges Have Heard It All Before
It is understandable that most divorce or paternity client will not fully appreciate that many of their issues have been heard before by the judge. After all, why would anyone else have had multiple experiences with divorcing couples except family judges and attorneys?
I raise this point because I have seen many of my clients believe in what I call “the uniqueness fallacy”: the overestimation of the novelty of their domestic situation. In the divorcing spouse’s perspective, they are enduring a once-in-lifetime crisis that was never anticipated.
However, to a family law attorney or judge, that person’s case invariably reminds them of another divorce they once dealt with. Mind you, I am not minimizing the hardships of divorce or custody litigation. Rather, I am offering you the perspective held by both your attorney and your judge.
The revelation about your ex-spouse that you thought would have a devastating impact will probably barely register a reaction from the judge. Please keep this in mind the next time you think that you have a “bombshell” that you want to reveal.
Call AAA Family Law for Help
If you want more perspective on custody litigation or need to hire a family lawyer, feel free to contact AAA Family Law at (407) 260-6001 for an initial consultation.
At that consultation I will first (1) listen carefully to your personal family law situation, (2) propose to you a plan of legal action to resolve your issues and achieve your objectives and (3) quote you a fixed retainer fee for the whole amount that your case will cost you before you make any payments or sign any contract, rather than an hourly rate that results in an unpredictable total cost to you.
These are the ranges of attorney retainer fees for the divorce and paternity cases. The amount of the actual fee within these rages will depend on the degree of complexity of your case.
Contested Divorce Up To Mediation: $2,000 to $3,000. (An additional retainer amount is set before a trial if there is a trial.)
Uncontested Divorce: $1,000 to $1,500.
Paternity Cases: $1,750 to $2,500. (An additional retainer amount is set before a trial if there is a trial.
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