flafcc

By Connie J. Byrd, Esq.
Board Member, FLAFCC

Family disputes represent the largest number of new cases filed in circuit courts throughout Florida. In the 2015/2016 year, the Florida Office of State Courts Administrator reported more than 288,000 new family law cases opened. Of that number, 82,000 were actions dissolution of marriage, outpaced only by orders for protection against violence. (Jameson et al., 2015-2016, p. 5-2, 5-3). Though time and costs vary widely depending at least in part on the complexity of the matter, selection of process, and attorney experience, at least one source estimates the average divorce in Florida takes fifteen months and costs $13,300 (Martindale-Nolo Research). Despite the time and cost invested, emotional and financial issues are often left unresolved, as is evidenced by the 223,000 domestic relations cases that were re-opened in 2015/2016, primarily for modification and enforcement (Jameson et al., 2015-2016, p. 5-22).

What role do the professionals play in this? Mental and behavioral health professionals are asked to take positions as experts, often contributing to the already heightened sense of hurt, frustration, and failed communications between family members. Financial professionals are asked to utilize their expertise to justify polarized positions. And what about the lawyers? Many go to court the same way one would go to war – leading a battalion of well-prepared witnesses and highly trained experts into battle armed with evidence designed to obliterate the enemy. Unfortunately, the “enemy” is the family – most often permanently linked to each other by a shared past, children, extended family, and intertwined finances. As a result, no one wins.

Now imagine something different. Let’s take all that professional talent and re-direct the emotional energy and financial resources available to the family to build a highly effective interdisciplinary team focused on identifying common goals and creating options for re-structuring the family in transition. That’s Collaborative Law.

The collaborative process is now law in Florida. ( 61.55-61.58, Florida Statutes). It is a voluntary process chosen by the clients, each represented by separate, collaboratively trained attorneys. The clients and attorneys, along with other collaborative professionals chosen to participate as process facilitators, child specialists, if needed, and financial neutrals, enter into a participation agreement which includes a withdrawal provision that prevents the attorneys or other professionals from participating in any future litigation between the clients. This team takes part in a series of problem-solving meetings which result, ultimately, in a marital settlement agreement or some other final consent agreement. Along the way, the professional team assists the family by educating them about financial matters, co-parenting, child development, and communication techniques that will help them transition from their current life and relationship to something different in the future.

Some professionals question whether the collaborative process is a good process choice for families. The newly enacted Collaborative Family Law Process Act requires attorneys to follow specific rules, procedural and ethical, to screen cases before entering into an agreement for representing a client in a collaborative family law matter. When consulting with potential clients, lawyers are now required to disclose certain information about alternative processes and fees for professionals engaged as part of the collaborative team. Professionals engaging in services for families – not just legal services, but also marital and family counseling, financial services, spiritual counseling, and child-focused services- need to learn about collaborative law in order to properly evaluate, advise, and refer the families and individuals they serve. Professionals already practicing collaborative law need to understand the newly enacted Collaborative Law Process Act, along with the new rules of procedure and professional conduct.

Whether you are new to collaborative family law, or just seeking to understand the new statute and rules, consider attending an interdisciplinary collaborative law overview at the 14th Annual Conference of the Florida Chapter of the Association of Family and Conciliation Courts. This conference is designed to educate, inspire, and empower professionals serving families in transition. Save the date for the collaborative pre-conference seminar on September 25, 2017, and for the full conference from September 26-27, 2017. Find out more on the FLAFCC Conference page here

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References:

Patricia (PK) Jameson, & Staff of the Office of the State Courts Administrator (December 2016). Florida’s Trial Courts Statistical Reference Guide FY 2015-2016.Retrieved August 8, 2017, from http://flcourts.org/publications-reports-stats/statistics/trial-court-statistical-reference-guide.stml.

Martindale-Nolo Research (n.d.). Citing Websites. Divorce in Florida: How Much Does It Cost and How Long Does it Take, family-law.lawyers.com, Retrieved August 8, 2017, from http://fanukt-law.lawyers.com/divorce/divorce-in-florida.html.
Submitted by: Connie J. Byrd, Esquire

By Linda Fieldstone, M.Ed., Florida Supreme Court Certified Mediator, Florida Qualified Parenting Coordinator, Past President, FLAFCC; Judge Michelle Morley, Circuit Judge, 5th Judicial Circuit; Yueh-Mei Kim Nutter, Esq., Board Certified Specialist in Marital & Family Law Partner, Brinkley Morgan

Since the FLAFCC Task Force on Eldercaring Coordination approved Guidelines for Eldercaring Coordination in 2015, Florida has joined four other states in the Elder Justice Initiative on Eldercaring Coordination: Idaho, Indiana, Ohio and Minnesota. Eight Circuits in Florida are currently Pilot Sites, providing Eldercaring Coordination (www.EldercaringcoordinationFL.org)
as a more humane response to high conflict cases involving the care and safety of an elder. Already over 50 cases have been referred to the process and the results the Eldercaring Coordinators have generated are positive and encouraging. Here are the top ten ways that Eldercaring Coordination can make a difference in the care and safety of elders in high conflict families:

1. Eldercaring Coordination is a court-ordered dispute resolution option especially developed to help high conflict families focus more productively on issues related to the care and safety of an elder. The focus is on the elder, rather than competing individual agendas.

2. Ongoing conflict and personal agendas consume the time and energy of everyone involved and often impedes the care of the elder. When family members feel heard, the potential for conflict decreases and the elder’s needs can be addressed sooner.

3. The Eldercaring Coordinator addresses non-legal, family issues so that attorneys and the court can address legal issues without constant disruptions. This helps to avoid frivolous and highly emotional hearings.

4. Eldercaring Coordination reduces risks and increases safety for the elder and others participating. Eldercaring Coordinators have been able to identify issues such as elder neglect, mental vulnerability, unsafe environments, coercion, physical problems, isolation, caregiver incapacity, elder relocation, and substance abuse or mis-medication.

5. Eldercaring Coordination promotes private, informed decision-making out of court by ensuring everyone has the same information. The Eldercaring Coordinator may serve as a liaison, when necessary, to share information and keep the doors open to communication and information gathering.

6. Eldercaring Coordination encourages collaboration, so families can generate more ideas and options for the elder that are feasible and convenient. The spectrum of care options is expanded so that well-informed decisions can be made from the range of opportunities available.

7. Eldercaring Coordinators help develop a support system for the elder and their families, optimizing the use of community resources, and experts. Attorneys, guardians, financial experts, mediators, aging life care professionals, and others are able to assist the elder and family with specified issues and fewer barriers.

8. The Eldercaring Coordinator is neutral. In a neutral environment, there is a greater chance of cooperation, as it takes the parties out of the adversarial framework of the court. Since parties share the payment of fees, the perception that the Eldercaring Coordinator can be bought or influenced by participants dissolves.

9. According to the term specified within the Court Order of Referral, the Eldercaring Coordinator is available across an extended period of time. This structure allows the Eldercaring Coordinator to assist the family through the many transitions the elder faces during the aging process.

10. Whether in a facility or a family member’s home, the elder is empowered to reunite with family members and others who may have previously been precluded from visiting. Together, the family and elder are able to resume meaningful connections and obtain closure on past issues. Even the youngest members of the family benefit from these more positive intergenerational influences.

If you are interested in developing an Eldercaring Coordination Pilot Site, contact FLAFCC Task Force Co-Chairs Linda Fieldstone, M.Ed. (Lindafieldstone@outlook.com) or Judge Michelle Morley (Mmorley@circuit5.org).

Carolyn Stimel, Ph.D., ABPP (Forensic)

Private practice, Executive Director Florida Psychological Association
For those of us working in the borderlands of mental health practice and the legal system, we are well aware that the old question of Who is the client is too simplistic for our complicated times, And yet, we must deal with the issues raised by it all the time. How do we balance the needs of all those individuals involved in a messy high-conflict family, When we are doing a court-ordered evaluation on an individual and they make a homicidal threat, what do we do about it, When we are doing a custody evaluation and think there might be ongoing physical abuse to a domestic partner, what should we do with that information, What do we do when the needs of multiple children in a case are incompatible When working as a parenting coordinator for a case and someone asks you to keep certain information confidential, what is the best course of action, What about when a collateral source you have contacted for information asks that you not disclose them as the source.

What are the legal requirements that play into our decision-making, What are the ethical requirements that are involved, And are they the same? The answer to that last question is not usually. There are many cases in which legal and ethical demands may not be compatible. In most clinical work with systems, it is recommended to have transparency. This does not tend to be the typical legal model. In collaborative models striving towards transparency is more evident. Participation Agreements should make it clear what the parameters for information exchange are. Having done so, confidentiality issues should be less of an issue but it is difficult to anticipate all the possible scenarios that could arise.

Now, in a perfect world, we have thought through all the possible issues that could arise and we have covered all possible scenarios in our consent procedures and documents prior to beginning a case. We have discussed this thoroughly in our informed consent process with all of the potential participants in the case. In reality, we are often faced with unforeseen circumstances that require complex decision-making.

I would suggest that the more appropriate question to ask ourselves in any case is, What are my professional responsibilities to each person or entity involved in this case. Because in any case, there are multiple parties to whom we have some responsibility. We have laws and administrative rules that address some of the requirements. We may be working under a court order with defined conditions. We have general and specific ethical guidelines that provide some guidance, but not always a definite course of action. The nature of the referral, whether court-ordered, attorney requested, or self-referred, provides some guidance. We usually have some professional responsibility toward the referral source, but we also have responsibilities to those directly being assessed and/or assisted. Also, in many forensic cases, there are associated others (such as collateral sources of information or participating family members) to whom we have some responsibility. Some of these associated entities may be systems such as the court, and other organizations. Some will be directly involved such as an individual being evaluated or family members being assisted with elder or parenting coordination. Some will be less directly involved but still brought into the process, such as extended family or collateral informants. And we cannot ignore our responsibilities to society at large, which is what we are serving when we act in response to suspected child abuse or danger to the community.

As in much of life, there is a balancing act involved in examining our professional responsibilities to all of these involved participants. One of the reasons there are rarely clear-cut answers is that we often have to prioritize the values and needs involved. And in this process, our own values, needs and biases come into play even when we like to pretend they are not in the mix. I have watched and monitored the state’s disciplining of mental health licensees over many years in my roles with the psychological association. In many of the cases, it appears that the transgressions started with the professional wanting to help as opposed to intentionally trying to harm others. However, other issues intrude and lead to complex problems. These issues may involve seeing oneself as a crusader, violating boundaries while thinking it was for a positive goal, and not taking into account the totality of professional responsibilities involved in the situation.

So, acknowledge that ethical dilemmas are rarely as clear as we would like and be thoughtful about how to proceed when they arise. Consultation (one on one please, not on a list serve) with trusted and experienced colleagues, consultation with your attorney, and contacts with malpractice carriers may help in the decision-making process. Be forewarned that you may receive differing opinions that you will need to sort through. Most of these types of decisions are multiple-choice and you have to think in terms of the best answer as more than one answer may be correct!

The rate of late-in-life divorces has doubled in the past decade. The golden years are now viewed as the last opportunity to find happiness. The dramatic growing number of grey-haired divorces impacts how families look at their elders. It affects family members at all levels, financially and emotionally. The combination of limited income, financial needs, and maintaining family relationships requires knowledge of resources and creativity to meet the unique needs of late in life divorces. The following top ten tips can be used by family law professionals in working with high-conflict families of elders.

1. Do not think you will find out everything about the conflict in the first meeting with the family. Families have secrets that have lasted for years and it may take some time and trust before they let you into their inner circle.

2. There is not one truth to the reason for the conflict. Each family member has their own perception which should be respected.

3. Elders are not wrinkled children. They have legal rights that children do not have until the age of majority. Be respectful of the elder’s culture, including generational, ethnic, and religious background as well as other unique characteristics.

4. Elders are accustomed to their independence and doing things the way they have always done them. When they are confronted by normal physical and mental tasks that now challenge their abilities, it is difficult for them to acknowledge their need for help. Be prepared to help them save face with diplomacy that will enable them to accept help without having to admit they need it.

5. Elders are sensitive about their mortality and we need to be, too. It is unfair to put elders in the center of conflict, especially if their faculties are being compromised by the frailties of aging. Life is too short. We also need to recognize that time is of the essence and that when elders need help they cannot always wait for the dust to settle.

6. Families do not age out. They continue to grow, bringing their old problems along with them. Elders and their loved ones need the same conflict resolutions as younger families. (They also need the professional services of FLAFCC members at this point in the age spectrum.)

7. What affects the elder, affects all the generations after. The modeling you provide will be helping the youngest generations and even those generations to come.

8. Being gray haired does not necessarily mean being old and ready for the nursing home. It can still be a time to pursue personal happiness despite the impact on the family structure, be it separation, divorce, or late in life marriage.

9. Elders may need to be shielded from family members seeking to protect inheritances by challenging the elder’s mental capacity, unduly influencing the elder, and controlling the elder’s life.

10. Eldercaring Coordination can help! Eldercaring Coordination is an empowering, non-adversarial dispute resolution method used to help manage high conflict family dynamics so that the elder, family, and stakeholders can address their concerns independently from the court.

By: Linda Fieldstone, Michelle Morley, Yueh-Mei Kim Nutter
For more information, contact Kim Nutter, Esq. at Kim.nutter@brinklymorgan.com, Linda Fieldstone, M.Ed. at Linda Fieldstone@outlook.com, or Judge Michelle Morley at Mmorley@circuit5.org.

With the exception of one very controversial bill that brings time-sharing into the administrative child support realm, the 2017 legislative session was rather sedate as relating to children and families. Here are the relevant bills that have become law as of June 25, 2017:

Caregivers who add a child to an existing policy can be reimbursed for the increase in cost attributable to adding the child.

Funding is also provided (until available funds are exhausted) for those children who have reached permanency status or have turned 18 for up to six months after obtaining permanency or turning 18, and potentially beyond that six-month period, provided the child can demonstrate that the costs of licensure and the incidental costs thereto are creating barriers for obtaining employment or completing educational goals.

DCF is to contract with a non-profit entity to operate and administer the program.

Dependency legislation relating to transition planning (section 39.6035, Florida Statutes) has been amended to add obtaining a driver’s license as an item the transition plan must address.

The judicial review legislation (section 39.701) has been amended to require that for children 15 years of age and older, the court is to determine if appropriate steps are being taken for the child to obtain a driver’s license or learner’s permit. After the judicial review hearing when a child turns 17, DCF’s social study reports have to include information on how to obtain a driver’s license or learner’s permit.

Guardians ad litem have been added to the list of persons who can be authorized to make an application on behalf of a minor for issuance of a learner’s permit without assumption of any obligation or liability for damages caused by the minor in the operation of a motor vehicle.

Finally, the bill re-enacts the law requiring that any child between 16 and 18 applying for license, must have a certification by a responsible adult that the child has been accompanied for at least 50 hours of behind-the-wheel experience, ten hours of which must have been night driving. The responsible adult must also certify to having monitored the child during any online driver license examination.

The act became effective upon becoming a law on May 1, 2017.

2. Chapter 2017-27, Laws of Florida (Committee Substitute for Committee Substitute for Committee Substitute for House Bill No. 185) This bill allows families who operate a licensed family foster home to receive family annual entrance passes to all state parks and a fifty percent (50%) discount on base campsite fees at state parks.

Families who adopt a special needs child receive a one-time annual entrance pass at the time of adoption.

The act took effect on July 1, 2017.

3. Chapter 2017-23, Laws of Florida (Committee Substitute for Committee Substitute for Senate Bill No. 852) — This law relates to human trafficking. Section 39.524, Florida Statutes, is amended to require DCF or law enforcement to conduct a multidisciplinary staffing of a child found or suspected to be a victim of commercial sexual exploitation in order to determine the child’s need for services and need for placement in a safe house or safe foster home. The results of the staffing and any assessments must be included at the next disposition hearing on judicial review. DCF, CBC’s and law enforcement are to provide annual reports to the Legislature on the prevalence of child commercial sexual exploitation, the specialized services provided to the children and their placement, as well as local service capacities assessed. DCF is mandated to maintain certain data related to these matters.

Commercial sexual exploitation is defined as the use of any person under 18 years of age for sexual purposes in exchange for money, goods or services or the promise of money, goods, or services.

Safe homes and safe foster homes are required to be certified by DCF, and, as part of the certification process, must use strength-based and trauma-informed approaches to care, group victims by age or maturity level and provide separate care for victims of commercial sexual exploitation.

Residential treatment centers and hospitals providing mental health treatment have to provide specialized treatment for victims of commercial sexual exploitation. CBC lead agencies are to ensure that victims have a case manager and case plan, regardless of any dependency status.

The locations of safe homes and safe foster homes are confidential and exempt from disclosure.

Methodologies for conducting multidisciplinary staffings and service plans are created. Training protocols requiring specialized intensive training for investigators and case managers assigned to victims of commercial sexual exploitation.

This act took effect upon approval by the Governor, which occurred on May 23, 2017.

4. Chapter 2017-13, Laws of Florida (Committee Substitute for Committee Substitute for House Bill No. 151) In addition to the use of therapy dogs to assist child victims and child witnesses, facility dogs and therapy animals may also be used.

A facility dog is a dog that has been trained, evaluated and certified as a facility dog pursuant to industry standards and provides unobtrusive emotional support to children and adults in facility settings.

A therapy animal is an animal trained, evaluated and certified as a therapy animal pursuant to industry standards by an organization that certifies animals as appropriate to provide animal therapy.

The act took effect on July 1, 2017.

5. Chapter 2017-80, Laws of Florida (Committee Substitute for House Bill 329) This bill amends section 61.13, Florida Statutes, to provide that any time-sharing plan may not require a minor child to visit a parent who is a resident of a substance abuse recovery residence between 9:00 p.m. and 7:00 a.m., unless a court makes a specific finding that such visitation is in the child’s best interests. Among the factors the court is to take into account are whether the residence is for pregnant women or parents whose children reside with them, the number of adults in the residence, and the parent’s level of recovery.

Notwithstanding a court’s finding of best interests, if any of the residents are sexual predators or sexual offenders, no such visitation shall be allowed at the recovery residence.

The act took effect on July 1, 2017.

6. Chapter 2017-117, Laws of Florida (Committee Substitute for Committee Substitute for Senate Bill 590) Arguably the most controversial bill to pass, this act authorizes the establishment of parenting time plans in administrative child support proceedings, when the parties agree to the same.

While the bill may seem innocuous on its face, the bill provides no mechanism for addressing any power imbalances that may exist between parties in arriving at an agreed-to parenting time plan, other than an off-hand statement that it is not intended for parents and families with domestic or family violence concerns.

A default parenting time plan is created that, if accepted by the parties, gives the obligor parent two weekends per month (Friday at 6:00 p.m. to Sunday at 6:00 p.m., with extension to a Friday and/or Monday if a holiday falls thereon), a 2-hour mid-week time, alternating Thanksgiving break, Winter break, Spring break, and two weeks in the summer.

This act contradicts the 2008 amendments to Chapter 61, which explicitly state that there is no presumption in favor of or against any particular parenting plan or time-sharing schedule, and the court is to treat each family as unique and determine the appropriate parenting plan for that family.

There are concerns as to what the legal effect of any agreed-to parenting time plan will be if a parent later seeks court involvement. Will it be a de novo review and a best interests standard. Will it be a substantial change modification standard. Loose language in the act itself would suggest the latter: If, after the incorporation of an agreed-upon parenting time plan into and administrative support order, a parent becomes concerned about the safety of the child during the child’s time with the other parent a modification of the parenting time plan may be sought through a court of appropriate jurisdiction.

Stay tuned for more information on this act, as it is interpreted by the courts.

It took effect on January 1, 2018.

Allegations of parental alienation are common in high conflict divorces. They are usually a function of deeper issues in the family including exposure to high intense marital conflict, humiliating separation, and professional mismanagement (Kelly & Johnston, 2001). The concept of family alienation was popularized by Gardner (2002) who describes it as a syndrome. This implies a specific set of symptoms that are displayed by the alienated child. The syndrome has not been validated by empirical research. Rather, alienation is more accurately described as a set of behaviors on the part of a parent which may or may not result in a child becoming alienated (Kelly & Johnston, 2001).

The alienated child is described by Kelly and Johnston (2001) as one who expresses disproportionately negative behavior about the alienated parent that is not consistent with his or her actual experience. Alienation may be expressed in degrees (Paul, 2014). Mild alienation may result in resistance towards visitation. Moderate alienation may involve the degradation of the alienated parent by the child. Severe alienation takes the form of false allegations and/or actual fear of contact with the alienated parent.

In an article by Baker and Darnall (2006), the most frequently reported alienated behaviors included “badmouthing”, interference with parental visitation and contact, limitation of mail and phone contact, interfering with information such as updating school or medical issues, emotional manipulation, unhealthy alliances such as spying and reporting back, and symbolic interferences such as returning Christmas cards.

Two of the major consequences of alienation on the child are fearfulness and low self-esteem (Mone & Biringen, 2006). These consequences can last into adulthood. Alienation has also been found in intact, high conflict marriages. The longer the alienation, the worse the outcome. Parental alienation may be described as a form of propaganda (Gottlieb, 2014) in which the alienated parent is characterized as dangerous, untrustworthy and harassing. The alienating parent expresses these beliefs in the presence of the child.

The treatment for parent alienation is reunification therapy. It should begin as soon as alienation is detected. Jones, Hardy, and Smyth (2015) warn that there is no guarantee of a successful outcome. This writer views parental unification therapy as a developmental process beginning with addressing timesharing issues with the child(ren), and then the child(ren) and alienated parent, and finally if possible, the child(ren) and both parents. Dagan and Ailon (2015) offer a checklist for therapists when consulting with lawyers to set up the process of reunification therapy. It includes arranging a conference call with both lawyers at the beginning of the case, reviewing the consent order to treat with emphasis upon the child’s best interests and indemnification of the mental health professional, reviewing the importance of the lawyer’s assistance, submission of the retainer agreement, review of the limits of confidentiality, reviewing the limitations of psychotherapy, and lastly the agreement of both lawyers to submit any pertinent documents.

References
Baker, A.J.L. & Darnell, D. (2006). Behaviors and Strategies Employed in Parental Alienation, Journal of Divorce & Remarriage, 45: 1-2, 97-124, doi:10.1300/J087v4n01 06

Dagan H. & Ailon, E. (2015). Workshop 55: It’s All in the Architecture: A Blue Print for Successful Reunification Therapy [PowerPoint slides]. AFCC 52^nd Annual Conference, Children in the Court System: Different Doors, Different Responses, Different Outcomes. Retrieved from: https://www.afccnet.org/Conferences-Training/AFCC-Conferences/ctl/ViewConference/ConferenceID/48/mid/615

Gardner, R.A. (2002). Parental Alienation Syndrome vs. Parental Alienation: Which Diagnosis Should Evaluators Use in Child-Custody Disputes, The American Journal of Family Therapy, 30:2, 93-115, doi: 10.1080/019261802753573821

Kelly, J.B, & Johnston J.R. (2001). The Alienated Child: A Reformation of Parental Alienation Syndrome. Family Court Review, Vol. 39, No. 3, 249-266. Retrieved from: http://www.lexisnexis.com.ezproxy.fiu.edu/hottopics/lnacademic/?verb=sr&csi=7327&sr=cite(39+Fam.+Ct.+Rev.+249)

Mone, J.G. & Biringen, Z. (2006). Perceived Parent-Child Alienation, Journal of Divorce & Remarriage, 45:3-4, 131-156, doi: 10.1300/J087v45n03 07

Paul, H. A. (2014). The Parent Alienation Syndrome: A Family Therapy and Collaborative Systems Approach to Amelioration, by L. Gottlieb. Child & Family Behavior Therapy, 36(1), 71-79. doi:10.1080/07317107.2014.878199

FLAFCC recognizes the complex scholastic history of child resistance to a parent during a divorce. Specifically, there is ongoing academic discourse over the appropriate terminology, definitions, etiology, prognosis, and interventions for these cases. For example, in the literature on child resistance, there continues to be an ongoing debate of the use of terms such as parental alienation syndrome (PAS), parental alienation disorder, and parental alienation (Gardner, 1998; Bernet, 2010; Darnell, 2010). Some scholars have emphasized the importance of identifying background and personal factors that contribute to the child’s resistance to a parent and have adopted the term child alienation or alienated child to emphasize the individual child’s situation (Kelly & Johnston, 2001). Parental gatekeeping has been used to describe the continuum of parental attitudes and behaviors that affect the quality of the co-parent’s relationship with the child. On this continuum, unjustified restricted gatekeeping can result in the alienation of the child from the resisted parent, but not always (Austin, Fieldstone, Pruett, 2012). The following article is published to further the discussion and awareness of the restricted gatekeeping behaviors on the part of the parent resulting in the resistance of the child. Full citations available upon request.