At the office of Edward J. Jennings, P.A., we recognize that though ART is a miracle, it can cause complications between donors, surrogates, and families. If you and your spouse are interested in using ART to create your biological child, you need to be sure to have a foolproof contract in place. Our Fort Lauderdale family law attorneys can help you draft such a contract and ensure that, should a need ever arise, you are not without full parental rights.

Florida Law Regarding Sperm, Eggs, and Pre-embryos 

Unlike many other states, Florida has sufficient legislation in place regarding parentage and ART. Statutes 742.13, 742.11, and 742.17 all deal with determination of parentage and what should happen in certain circumstances, such as death or divorce. However, that does not mean that if you choose to go the ART route that you should not have sufficient contracts in place. For instance, Statute 742.17 states that, absent a written agreement, any decision-making authority regarding the disposition of pre-embryos shall reside jointly with the commissioning couple. However, what if the commissioning party decides to get divorced and one party of the couple wants to follow through with a surrogacy while the other does not. Whose decision wins out in such a situation?

Another situation that could arise is if one or both of the commissioning parties died prior to the child being born. Without a will that provides for the child, the child of the ART would not have any right to the decedent’s estate. If one commissioning party died, this could be unfortunate. However, if both commissioning parties were to pass away, the child would essentially be an orphan, and not having a will in place to provide for him or her could be devastating.

Gestational Surrogacy Agreement 

Under 742.11, any child born within wedlock who has been conceived via ART is presumed to be the child of the husband and wife provided that both husband and wife provided written consent, except in the case of gestational surrogacy. Additionally, any child born within wedlock who has been conceived by means of donated eggs or pre-embryos shall be presumed to be the child of recipient gestating woman and her husband provided that both parts have given written consent, except in the case of gestational surrogacy. If you and your spouse want to ensure that parental rights are yours and yours alone, and that the surrogate does not have any rights beyond carrying and birthing the child, you need to have a gestational surrogacy agreement in place. This agreement should outline the relationship between the gestational surrogate and the child post-birth, what should happen to the child in the event of a parental death, and all rights the intended parents have with regards to the fetus and the pregnancy (e.g. no smoking, no drinking, eat well). Additionally, the contract should include a waiver of parental rights for the gestational surrogate to sign.

On the same token, parents should consider drafting a sperm donor agreement. Though issues with sperm donors arise far less often than those with gestational surrogates, they do happen. Your sperm donor agreement should specify whether or not the donor will be identified to the child at a later date and if so, when that should take place. If you want the donor to waive his rights, you should include a waiver in the agreement as well.

Work With a Knowledgeable Family Law Attorney 

When a person agrees to ART, it can be difficult to imagine anything beyond the birth of the child. However, it is imperative that intended parents think about the consequences of not having a contract in place, and that they take all the proper measures to ensure full parental rights when their bundle of joy arrives. If you and your spouse are thinking about ART in order to have a child, reach out to the Fort Lauderdale family law attorneys at the office of Edward J. Jennings, P.A., to schedule a consultation today.

Resources:

leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0742/Sections/0742.13.html

leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0742/Sections/0742.11.html

leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0742/Sections/0742.17.html

When a Modification May Be in Order 

There are several reasons that may convince a judge that a modification to a parenting plan is in order, one of which is that the child merely outgrew the existing plan. For instance, if Mom and Dad split when the child was just six months old, the judge may have determined that living with Mom for a majority of the time was best, as the child may have been breastfeeding at the time, and Mom may have had more flexibility with her schedule. However, if the child is now six years old and in school full time, and if both Mom and Dad start work at 8:00 a.m. and get off at 5:00 p.m., it would not make sense for Dad to lose out on parenting time because his child was breastfed as a baby. In such an instance, the judge may modify the order to grant Mom and Dad equal amounts of custody.

In addition to a child simply outgrowing a parenting plan, other possible reasons for a modification include:

• Either Mom or Dad is relocating;
• The child’s school or school schedule changes;
• Mom or Dad’s work schedule changes;
• A modification is deemed to be in the child’s best interest;
• Either parent remarries and his or her new spouse is not a good role-model for the child; or
• The child is in danger.

For the complete list of reasons that the State of Florida may choose to revise an existing parenting plan, review Florida Statutes 61.13 (3).

Major vs. Minor Modifications 

Depending on the type of change you wish to make to the parenting plan, the modifications may be major or they may be slight. Minor modifications do not change where the child lives a majority of the time, and no more than 24 days out of the year are changed. These modifications are made because there has been a slight adjustment in a parent’s or the child’s schedule, and the changes were made to account for them.

A major modification, however, is much more significant and usually stems from the fact that the current parenting plan is no longer in the best interests of the child. For instance, if it is discovered that one parent abuses drugs while with the child, the sober parent may gain sole custody. The other parent may be given the opportunity to clean themselves up and reapply for custody, but usually, if they fail to do so within a certain amount of time, their chances of regaining custodial rights is slim.

If you want to make a major modification to the parenting plan, you must prove “adequate cause,” which could be one of or more of the following:

• Both parents agree to the modification;
• One parent has allowed the child to live with the non-custodial parent for a significant amount of time;
• One parent has abandoned all parenting responsibilities;
• One parent has been held in contempt of court at least twice within three years for failing to adhere to the parenting plan;
• The child is no longer safe in his or her current environment; or
• One parent has been convicted of custodial interference.
  

Work With a Fort Lauderdale Child Custody Attorney to Obtain the Modification You Desire 

If you want to modify your current parenting plan, let our team at the office of Edward J. Jennings, P.A. help. We will review your reasons for wanting a modification and determine the best way to proceed from there. To schedule a consultation with one of our compassionate legal associates today, contact us by phone or online.

Resource:

leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0061/Sections/0061.13.html

Determining child custody in Florida is one of the most difficult and emotionally charged aspects of divorce. Though in some cases parents can come to an agreement on a custody schedule, such cooperation is rare. In most cases, Florida family court judges must use their discretion to come up with a parenting plan that is in the best interests of the child. Unfortunately, there is no “formula” for deciding child custody, and most judges are forced to rely on their impressions of each parent.

With that in mind, there is one thing parents can do to ensure a positive outcome to their custody battle, and that is to hire a Fort Lauderdale child custody attorney. If you are concerned about the outcome of your divorce and how it may affect your relationship with your child, reach out to the lawyers at Edward J. Jennings, P.A. for sound advice and aggressive legal representation today.

The “Best Interests” Factor 

Florida courts are most concerned with what is in the bests interests of the child. Divorce in and of itself can take a huge toll on a child, and the courts try their best to make sure that the negative impact is minimized as much as possible. In order to do this, the judge considers many factors before granting custody. Some factors the judge will consider include the following:

• The physical, mental, and moral health of each parent;
• The ability of each child to meet the child’s developmental needs;
• The child’s school district;
• The child’s home history;
• The permanence of each parents’ proposed home;
• The permanence of the child’s situation;
• Each parents’ ability to provide the child with necessities;
• The love, affection, and existing relationship between the child and each parent;
• Whether or not there is a history of domestic violence;
• Whether or not either parent will cooperate and encourage contact by the other parent;
• Whether either parent will be willing to accommodate changes made by the other parent;
• Whether either parent will honor the time-sharing schedule;
• The extent of involvement each parent is anticipated to have in the child’s life; and
• How much of a parent’s parenting time will be delegated to someone else (i.e. a caregiver).

In a child custody case, each parent will be required to give as much information as possible about their current and future situations. They can also provide information about the other parent if they believe that doing so might be relevant. Though the courts rely heavily on the information provided by each parent, it would do neither parent any good to lie. Not only do the courts fact-check the information given to them, but also, if it is found out that either parent lied, it can hurt their case significantly.

Florida Courts Have Wide Discretion Over Child Custody Matters 

As mentioned above, there is no “formula” that Florida courts adhere to when granting child custody, and a judge can use his or her own discretion when divvying up parenting time. That said, a judge must make decisions based on what is in the best interests of the child, and they must be willing and ready to prove how their final parenting plan is what is in the best interests of the child.

Florida’s child custody laws can be complex, with little if not no room for no black-and-white decisions. If you want to ensure a positive outcome to your child custody case, do not try to resolve it on your own, and work with a Fort Lauderdale child custody lawyer who understands how Florida judges think and what evidence is necessary to prove that you are a worthy parent. If you are interested in scheduling a free consultation, call Edward J. Jennings, P.A. at 954-764-4330 today.

Resource:

leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0061/Sections/0061.13.html