In Re: Amendments To The Florida Family Law Rules Of Procedure
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Supreme Court of Florida
____________
No. SC07-1160
____________
IN RE: AMENDMENTS TO THE FLORIDA FAMILY LAW RULES OF
PROCEDURE.
[April 24, 2008]
CORRECTED OPINION
PER CURIAM.
By previous opinion in this case, the Court adopted new Florida Supreme
Court Approved Family Law Form 12.905(d) (Supplemental Petition for
Temporary Modification/Amendment of Custody for Child(ren) of Custodial
Parent Activated, Deployed, or Temporarily Assigned to Military Service), and
amended rule 12.070 (Process), with an accompanying new form 12.913(c)
(Affidavit of Diligent Search).1 The new forms and rule amendment were adopted
on an expedited basis as a result of a “fast-track” report from the Florida Family
Law Rules Committee (Committee), filed in response to legislation passed in the
2007 legislative session. Because the Committee’s proposals were adopted on an
1. We have jurisdiction. See art. V, § 2(a), Fla. Const.
expedited basis and without prior publication for comment, the Court allowed
interested persons sixty days from the date of the opinion to file comments with the
Court.
The Family Law Section of The Florida Bar filed a comment objecting to
new form 12.905(d), as adopted. New form 12.905(d) was proposed by the
Committee in response to Chapter 2007-132, section 1, Laws of Florida. That
legislation created new section 61.13002, Florida Statutes (2007), prohibiting a
court from modifying child custody during the time a parent is activated, deployed,
or temporarily assigned to military service, except to issue a temporary
modification order if it is in the best interests of the child. § 61.13002(1), Fla. Stat.
(2007). If a temporary order is issued, the statute requires that the court reinstate
the previous custody judgment upon the parent’s return from active service,
deployment, or temporary assignment. § 61.13002(2), Fla. Stat. (2007).
In response to the Family Law Section’s objection, the Committee requested
that new form 12.905(d) be withdrawn and that, instead, form 12.905(a)
(Supplemental Petition to Modify Custody or Visitation and other Relief) be
amended to alert the trial court that section 61.13002(1) may limit the trial court’s
authority to enter a final judgment modifying child custody during the time a
parent is activated, deployed, or temporarily assigned to military service. We defer
to the Committee’s expertise on this issue.
-2-
Accordingly, Florida Supreme Court Approved Family Law Form 12.905(d)
(Supplemental Petition for Temporary Modification/Amendment of Custody for
Child(ren) of Custodial Parent Activated, Deployed, or Temporarily Assigned to
Military Service) is hereby deleted, and Florida Supreme Court Approved Family
Law Form 12.905(a) (Supplemental Petition to Modify Custody or Visitation and
other Relief) is amended as proposed by the Committee and as set forth in the
appendix to this opinion, fully engrossed. 2 The amendments shall become
effective immediately upon the release of this opinion.3
It is so ordered.
LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and
BELL, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
Original Proceeding – The Florida Family Law Rules of Procedure
Raymond T. McNeal, Chair, Family Law Rules Committee, Ocala, Florida; John
F. Harkness, Jr., Executive Director, and Ellen H. Sloyer, Bar Liaison, The Florida
Bar, Tallahassee, Florida,
for Petitioner
2. No substantive comments in response to publication were received with
regard to amended rule 12.070 (Process) or new form 12.913(c) (Affidavit of
Diligent Search). No changes are made to amended rule 12.070, and it is not
affected by this opinion. Minor editorial amendments are made to form 12.913(c)
as set forth in the appendix to this opinion, fully engrossed.
3. The amended forms may be accessed and downloaded from the Florida
State Courts website at www.flcourts.org.
-3-
Allyson Hughes, New Port Richey, Florida, and Ronald L. Bornstein of Kramer,
Ali, Fleck, Hughes, Gelb and Bornstein, Jupiter, Florida,
Responding with comments
-4-
APPENDIX
INSTRUCTIONS FOR FLORIDA SUPREME COURT APPROVED FAMILY LAW
FORM 12.905(a), SUPPLEMENTAL PETITION TO MODIFY CUSTODY OR
VISITATION AND OTHER RELIEF (04/08)
When should this form be used?
This form should be used when you are asking the court to change current court-ordered custody or
visitation arrangements. The court can change an order granting shared parental responsibility,
including a primary residential responsibility/custody order if the judge finds that there has been a
substantial change in the circumstances of the parties and the change is in the child(ren)’s best
interests.
This form should be typed or printed in black ink. After completing this form, you should sign the form
before a notary public or deputy clerk. You should file this form in the county where the original order
was entered. If the order was entered in another state, or if the child(ren) live(s) in another state, you
should speak with an attorney about where to file this form. You should file the original with the clerk
of the circuit court and keep a copy for your records.
What should I do next?
For your case to proceed, you must properly notify the other party in your case of the supplemental
petition. If you know where he or she lives, you should use personal service. If you absolutely do not
know where he or she lives, you may use constructive service. You may also be able to use constructive
service if the other party resides in another state or country. However, if constructive service is used,
other than granting a divorce, the court may only grant limited relief. For more information on
constructive service, see Notice of Action for Dissolution of Marriage, Florida Supreme Court Approved
Family Law Form 12.913(a), and Affidavit of Diligent Search and Inquiry, Florida Family Law Rules of
Procedure Form 12.913(b). If the other party is in the military service of the United States, additional
steps for service may be required. See, for example, Memorandum for Certificate of Military Service,
Florida Supreme Court Approved Family Law Form 12.912(a). In sum, the law regarding constructive
service and service on an individual in the military service is very complex and you may wish to consult
an attorney regarding these issues.
If personal service is used, the other party has 20 days to answer after being served with your
supplemental petition. Your case will then generally proceed in one of the following three ways:
DEFAULT... If after 20 days, no answer has been filed, you may file a Motion for Default, Florida
Supreme Court Approved Family Law Form 12.922(a), with the clerk of court. Then, if you have filed all
Instructions for Florida Supreme Court Approved Family Law Form 12.905(a), Supplemental Petition to Modify
Custody or Visitation and Other Relief (04/08)
of the required papers, you may call the clerk, family law intake staff, or judicial assistant to set a final
hearing. You must notify the other party of the hearing by using a Notice of Hearing (General), Florida
Supreme Court Approved Family Law Form 12.923, or other appropriate notice of hearing form.
UNCONTESTED... If the respondent files an answer that agrees with everything in your supplemental
petition or an answer and waiver, and you have complied with mandatory disclosure and filed all of the
required papers, you may call the clerk, family law intake staff, or judicial assistant to set a final hearing.
You must notify the other party of the hearing by using a Notice of Hearing (General), Florida Supreme
Court Approved Family Law Form 12.923, or other appropriate notice of hearing form.
CONTESTED... If the respondent files an answer or an answer and counterpetition, which disagrees with
or denies anything in your supplemental petition, and you are unable to settle the disputed issues, you
should file a Notice for Trial, Florida Supreme Court Approved Family Law Form 12.924, after you have
complied with mandatory disclosure and filed all of the required papers. Some circuits may require the
completion of mediation before a final hearing may be set. Then you should contact the clerk, family
law intake staff, or judicial assistant for instructions on how to set your case for trial (final hearing). If
the respondent files an answer and counterpetition, you should answer the counterpetition within 20
days using an Answer to Counterpetition, Florida Supreme Court Approved Family Law Form 12.903(d).
Where can I look for more information?
Before proceeding, you should read “General Information for Self-Represented Litigants” found at the
beginning of these forms. The words that are in “bold underline” in these instructions are defined
there. For further information, see chapter 61, Florida Statutes.
Special notes...
If you do not have the money to pay the filing fee, you may obtain an Application for Determination of
Civil Indigent Status from the clerk, fill it out, and the clerk will determine whether you are eligible to
have filing fees deferred.
With this form, you must also file the following:
•
•
•
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) Affidavit, Florida Supreme
Court Approved Family Law Form 12.902(d).
Child Support Guidelines Worksheet, Florida Family Law Rules of Procedure Form 12.902(e). (If
you do not know the other party’s income, you may file this worksheet after his or her financial
affidavit has been served on you.)
Settlement Agreement, if you have reached an agreement on any or all of the issues. Although
there is no form for this in these Florida Family Law Forms, you may construct a settlement
agreement using the pertinent sections contained in Marital Settlement Agreement for
Dissolution of Marriage with Dependent or Minor Child(ren), Florida Supreme Court Approved
Family Law Form 12.902(f)(1).
Instructions for Florida Supreme Court Approved Family Law Form 12.905(a), Supplemental Petition to Modify
Custody or Visitation and Other Relief (04/08)
•
•
•
Notice of Social Security Number, Florida Supreme Court Approved Family Law Form 12.902(j),
if not previously filed.
Family Law Financial Affidavit, Florida Family Law Rules of Procedure Form 12.902(b) or (c).
(This must be filed within 45 days of service of the supplemental petition on the respondent, if
not filed at the time of the supplemental petition.)
Certificate of Compliance with Mandatory Disclosure, Florida Family Law Rules of Procedure
Form 12.932. (This must be filed within 45 days of service of the supplemental petition on the
respondent, if not filed at the time of the supplemental petition, unless you and the other party
have agreed not to exchange these documents.)
Child Custody... If you and the respondent are unable to agree about with whom the child(ren) will live
most of the time, a judge will decide for you. The judge will decide the parenting arrangements based
on the child(ren)’s best interests. Regardless of whether there is an agreement, the court reserves
jurisdiction to modify issues relating to the minor child(ren).
The judge may request a parenting evaluation or appoint a guardian ad litem in your case. This means
that a neutral person will review your situation and report to the judge concerning parenting issues. The
purpose of such intervention is to be sure that the best interests of the child(ren) is (are) being served.
For more information, you may consult section 61.13, Florida Statutes.
Some circuits may require the completion of a parenting course before a final hearing may be set. You
should contact the clerk, family law intake staff, or judicial assistant about requirements for parenting
courses or mediation where you live.
Listed below are some terms with which you should become familiar before completing your
supplemental petition. If you do not fully understand any of the terms below or their implications,
you should speak with an attorney before going any further.
•
•
•
•
•
•
•
•
•
Shared Parental Responsibility
Sole Parental Responsibility
Rotating Custody
Primary Residential Responsibility
Secondary Residential Responsibility
Reasonable visitation
Specified visitation
Supervised visitation
No contact
Child Support... The court may order one parent to pay child support to assist the other parent in
meeting the child(ren)’s material needs. Both parents are required to provide financial support, but
one parent may be ordered to pay a portion of his or her support for the child(ren) to the other parent.
If you are requesting custody or primary residential responsibility for one or more children, you should
request child support in your supplemental petition. Florida has adopted guidelines for determining the
amount of child support to be paid. These guidelines are based on the combined income of both
parents and take into account the financial contributions of both parents. You must file a Family Law
Financial Affidavit, Florida Family Law Rules of Procedure Form 12.902(b) or (c), and the other parent
will be required to do the same. From your financial affidavits, you should be able to calculate the
Instructions for Florida Supreme Court Approved Family Law Form 12.905(a), Supplemental Petition to Modify
Custody or Visitation and Other Relief (04/08)
amount of child support that should be paid using the Child Support Guidelines Worksheet, Florida
Family Law Rules of Procedure Form 12.902(e). Because the child support guidelines take several
factors into consideration, change over time, and vary from state to state, your child support obligation
may be more or less than that of other people in seemingly similar situations.
Temporary Relief... If you need temporary relief regarding parental responsibility and visitation with
child(ren), or temporary child support, you may file a Motion for Temporary Support with Dependent
or Minor Child(ren), Florida Supreme Court Approved Family Law Form 12.947(a). For more
information, see the instructions for that form.
Settlement Agreement... If you and the respondent are able to reach an agreement on any or all of the
issues, you should file a Settlement Agreement. Although there is no form for this in these Florida
Family Law Forms, you may construct a settlement agreement using the pertinent sections contained in
Marital Settlement Agreement for Dissolution of Marriage with Dependent or Minor Child(ren),
Florida Supreme Court Approved Family Law Form 12.902(f)(1). Both parties must sign this agreement
before a notary public. Any issues on which you are unable to agree will be considered contested and
settled by the judge at the final hearing.
Final Judgment Form... These family law forms contain a Supplemental Final Judgment Modifying
Parental Responsibility/Visitation, Florida Supreme Court Approved Family Law Form 12.993(a), which
the judge may use. You should check with the clerk, family law intake staff, or judicial assistant to see if
you need to bring it with you to the hearing. If so, you should type or print the heading, including the
circuit, county, case number, division, and the parties’ names, and leave the rest blank for the judge to
complete at your hearing or trial.
Nonlawyer... Remember, a person who is NOT an attorney is called a nonlawyer. If a nonlawyer helps
you fill out these forms, that person must give you a copy of a Disclosure from Nonlawyer, Florida
Family Law Rules of Procedure Form 12.900(a), before he or she helps you. A nonlawyer helping you fill
out these forms also must put his or her name, address, and telephone number on the bottom of the
last page of every form he or she helps you complete.
Instructions for Florida Supreme Court Approved Family Law Form 12.905(a), Supplemental Petition to Modify
Custody or Visitation and Other Relief (04/08)
IN THE CIRCUIT COURT OF THE ____________________ JUDICIAL CIRCUIT,
IN AND FOR __________________________COUNTY, FLORIDA
Case No.: ________________________
Division:_________________________
____________________________________,
Petitioner,
and
____________________________________,
Respondent.
SUPPLEMENTAL PETITION TO MODIFY CUSTODY
OR VISITATION AND OTHER RELIEF
I, {full legal name} ____________________________________________, being sworn, certify
that the following information is true:
1.
The parties to this action were granted a final judgment of ( ) dissolution of marriage ( )
paternity on {date} __________________. A copy of the final judgment and any modification(s)
is attached.
2.
Paragraph(s)__________of the ( ) final judgment or ( ) most recent modification thereof
describes the present custody and/or visitation ordered.
3.
Since the final judgment or last modification thereof, there has been a substantial change in
circumstances, requiring a modification in custody or visitation. Those substantial changes are
as follows: {explain} ___________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
4.
I ask the Court to modify the ( ) custody ( ) visitation as follows: {explain} ____________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
Florida Supreme Court Approved Family Law Form 12.905(a), Supplemental Petition to Modify Custody or
Visitation and Other Relief (04/08)
5.
This modification is in the best interests of the child(ren) because: {explain} ____________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
6.
Respondent * √ one only] (
) is ( ) is not currently activated, deployed, or temporarily
assigned to military service.
7.
If the requested modification is granted, Petitioner requests that child support be modified,
consistent with the modification of custody or visitation. A Child Support Guidelines Worksheet,
Florida Family Law Rules of Procedure Form 12.902(e), is, or will be filed.
8.
A completed Family Law Financial Affidavit, Florida Family Law Rules of Procedure Form
12.902(b) or (c), is, or will be, filed.
9.
A completed Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) Affidavit, Florida
Supreme Court Approved Family Law Form 12.902(d), is filed with this petition.
10.
If not previously filed in this case, a completed Notice of Social Security Number, Florida
Supreme Court Approved Family Law Form 12.902(j), is filed with this petition.
11.
Other: ________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
I understand that I am swearing or affirming under oath to the truthfulness of the claims
made in this petition and that the punishment for knowingly making a false statement includes fines
and/or imprisonment.
Dated: ___________________
_____________________________________________
Signature of Petitioner
Printed Name: _________________________________
Address: ______________________________________
City, State, Zip:_________________________________
Telephone Number:_____________________________
Fax Number: __________________________________
STATE OF FLORIDA
COUNTY OF ___________________________
Sworn to or affirmed and signed before me on_______________ by _____________________________.
_____________________________________________
NOTARY PUBLIC or DEPUTY CLERK
_____________________________________________
[Print, type, or stamp commissioned name of notary or
deputy clerk.]
____
Personally known
Florida Supreme Court Approved Family Law Form 12.905(a), Supplemental Petition to Modify Custody or
Visitation and Other Relief (04/08)
____
Produced identification
Type of identification produced _______________________________
IF A NONLAWYER HELPED YOU FILL OUT THIS FORM, HE/SHE MUST FILL IN THE BLANKS BELOW: [fill in
all blanks]
I, {full legal name and trade name of nonlawyer} ____________________________________________,
a nonlawyer, located at {street} ______________________________, {city} ______________________,
{state}______________, {phone} ____________, helped {name} _______________________________,
who is the petitioner, fill out this form.
Florida Supreme Court Approved Family Law Form 12.905(a), Supplemental Petition to Modify Custody or
Visitation and Other Relief (04/08)
INSTRUCTIONS FOR FLORIDA FAMILY LAW RULES OF PROCEDURE
FORM 12.913(c), AFFIDAVIT OF DILIGENT SEARCH (04/08)
When should this form be used?
This form is to be used with Notice of Action, Florida Supreme Court Approved Family Law Form
12.913(a), to obtain constructive service (also called service by publication) on the legal father in
any action or proceeding to determine paternity which may result in termination of the legal
father’s parental rights.
You must disclose the last known address of the legal father. A last known address cannot be
unknown. This form includes a checklist of places you must look for information on the location of
the legal father. You have to look in all of these places, and the court must believe that you have
made a very serious effort to get information about the person’s location and that you have
followed up on any information you received.
This form should be typed or printed in black ink. After completing this form, you should sign the
form before a notary public or deputy clerk. You should file the original and a Notice of Action
Florida Supreme Court Approved Family Law Form 12.913(a), with the clerk of the circuit court in
the county where your petition for dissolution of marriage is filed. You should keep a copy for your
records.
Where can I look for more information?
Before proceeding, you should read General Information for Self-Represented Litigants found at
the beginning of these forms. For further information, see rule 12.070, Florida Family Law Rules of
Procedure, rule 1.070(e) and (f), Florida Rules of Civil Procedure, and section 409.257, Florida
Statutes.
Special notes...
Remember, a person who is NOT an attorney is called a nonlawyer. If a nonlawyer helps you fill out
these forms, that person must give you a copy of Disclosure from Nonlawyer, Florida Family Law
Rules of Procedure Form 12.900(a), before he or she helps you. A nonlawyer helping you fill out
these forms also must put his or her name, address, and telephone number on the bottom of the
last page of every form he or she helps you complete.
Instructions for Florida Family Law Rules of Procedure Form 12.913(c), Affidavit of Diligent Search (04/08)
IN THE CIRCUIT COURT OF THE _______________________ JUDICIAL CIRCUIT,
IN AND FOR ______________________________COUNTY, FLORIDA
Case No.: __________________________
Division:___________________________
__________________________________,
Petitioner,
and
__________________________________,
Respondent.
AFFIDAVIT OF DILIGENT SEARCH
I, {full legal name}_________________________________, being sworn, certify that the following
information is true:
1.
The last known address of the child(ren)’s legal father {name}______________________, as of
{date}______________________________, was:
Address _________________________ City____________ State__________ Zip ______
Telephone No. ____________________ Fax No. _______________________.
His last known employment, as of {date} __________, was:
Name of Employer __________________________________________________________
Address __________________________ City ___________ State __________ Zip ______
Telephone No. _____________________ Fax No. _______________________
2.
The legal father is over the age of 18.
3.
The legal father’s current residence is not known and cannot be determined, although I have
made a diligent search and inquiry to locate him through the following:
You must search ALL of the following sources of information and state the results.
____ United States Post Office inquiry through the Freedom of Information Act for the
person’s current address or any previous address.
Result of search:_____________________________________________________
____ Last known employment of the other parent, including name and address of employer.
Result of search:____________________________________________
____ Regulatory agencies, including professional or occupational licensing, in the area where
the other parent last resided. Result of search:_______________________
____ Names and addresses of relatives to the extent such can be reasonably obtained from
the petitioner or other sources, contacts with those relatives and inquiry as to the other
Florida Family Law Rules of Procedure Form 12.913(c), Affidavit of Diligent Search (04/08)
____
____
____
____
____
____
____
____
____
____
____
parent’s last known address. You are to follow up any leads of any addresses where the
other parent may have moved.
Result of search: _____________________________________________________
Information about the other parent’s possible death and, if dead, the date and location.
Result of search:______________________________________________
Telephone listings in the area where the other parent last resided.
Result of search: _____________________________________________________
Law enforcement agencies in the area where the other parent last resided.
Result of search: _____________________________________________________
Highway Patrol records in the state where the other parent last resided.
Result of search: _____________________________________________________
Department of Corrections records in the state where the other parent last resided.
Result of search: ______________________________________________
Hospitals in the last known area of the other parent’s residence.
Result of search: _____________________________________________________
Records of utility companies, which include water, sewer, cable TV, and electric in the
last known area of the other parent’s residence.
Result of search: _____________________________________________________
Records of the Armed Forces of the U.S. and their response as to whether or not there is
any information about the other parent. (See Florida Supreme Court Approved Family
Law Form 12.912(a), Memorandum for Certificate of Military Service.)
Result of search: _____________________________________________________
Records of the tax assessor’s and tax collector’s office in the area where the other
parent last resided. Result of search:______________________________________
Search of one Internet databank locator service.
Result of search: _____________________________________________________
Title IV-D (child support enforcement) agency records in the state of the other parent’s
last known address. Result of search: _____________________________
I understand that I am swearing or affirming under oath to the truthfulness of the claims
made in this affidavit and that the punishment for knowingly making a false statement includes fines
and/or imprisonment.
Dated:_____________________________
_________________________________________
Signature of Petitioner
Printed Name: _____________________________
Address: _________________________________
City, State, Zip: ____________________________
Telephone Number: ________________________
Fax Number: ______________________________
STATE OF FLORIDA
COUNTY OF _____________________
Sworn to or affirmed and signed before me on ___________ by ____________________________.
Florida Family Law Rules of Procedure Form 12.913(c), Affidavit of Diligent Search (04/08)
________________________________________
NOTARY PUBLIC or DEPUTY CLERK
[Print, type, or stamp commissioned name of notary or
deputy clerk.]
___ Personally known
___ Produced identification
Type of identification produced ____________________________
IF A NONLAWYER HELPED YOU FILL OUT THIS FORM, HE/SHE MUST FILL IN THE BLANKS BELOW: [fill in
all blanks]
I, {full legal name and trade name of nonlawyer} ________________________________________
a nonlawyer, located at {street} ____________________________, {city} ____________________,
{state} ______________, {phone} _____________, helped {name} __________________________,
who is the petitioner, fill out this form.
Florida Family Law Rules of Procedure Form 12.913(c), Affidavit of Diligent Search (04/08)
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