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Joseph
Joseph, Attorney
Category: Legal
Satisfied Customers: 7279
Experience:  I have 15 years experience in the legal field, currently specializing in criminal and family law
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Florida Divorce Paternity: what case law defines a parents

Customer Question

Florida Divorce Paternity: what case law defines a parent's rights regarding making a day-to-day decison vs. a major decision?

I want to take my daughter to a doctor for a sprained knee and my former spouse is objecting to the doctor I am chosing. I believe this to be a day-to-day decision so therefore I don't technically require my former spouses approval.
What Florida law or Case Law would help me to make my argument that taking my child to the dentist, doctor for the sniffles or a sore knee in this case is a "routine" or "day-to-day" decision?

Thank you.
Submitted: 1 year ago.
Category: Legal
Expert:  Joseph replied 1 year ago.

Good evening! I am a Florida family law attorney and I can tell you that you will not prevail in this argument as this would not be considered a day-to-day decision.

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A day-to-day decision would be something along the lines of what clothes the child will wear to school that day, what you will have for dinner or what television you might watch. Conversely, a major decision would be where the child goes to school, what religion she should follow and, unfortunately, what medical providers she will see. If you have time to schedule a doctor or dentist appointment, this is certainly going to fall within the meaning of a major decision and should be made mutually.

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As a note as this does not seem to fit your fact pattern, there could be an exception to this general rule. If your daughter had some type of fall or other emergency situation, you might want to take her to a doctor immediately. In such a situation, you would not be required to contact the mother and get her agreement.

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I regret that my answer is unfavorable, but please understand that it would be unfair to you (and unprofessional of me) to provide you with anything less than a truthful response.

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Customer: replied 1 year ago.

Dear Joseph,


 


Thank you for your time and shared thoughts.


 


Let me be clear that I don't mind a non favorable response provided it bring clarity to the situation.


 


We are discussing a matter of "what is reasonable".


 


Is it reasonable that the other parent should have to seek my mutual consent to take our child to the church of their choice on Sunday?


- I could argue that under the category of ( "all major decisions" regarding the child's; school, extra curricular, discipline, religious, medical ) that taking the child to a church we did not mutually agree on would not be acceptable.


 


However your comments are not substantiated by any law or case law and therefore are nothing more than arguable conjecture. And I did not offer to pay $58 for arguable conjecture. I was and am willing to pay for reference to Florida family law or case law.


 


I have spoke to other Attorneys and opinions vary based upon who you speak with.


 


The following are the relevant guiding directives in our agreement along with my arguable conjecture for insight and reference.


 


Again I need a law guide ( which I have found none in the statutes ) or better a relevant case law to see where a judge has ruled in a similar matter;


 


In our Settlement Agreement


Paragraph 3. Section A;


“Prior to making a major decision affecting the child, the parents will consult with each other regarding substantial questions relating to living arrangements,


travel and transportation, religion, educational programs, moral, social, recreational, and legal matters, discipline, and medical and dental care.”


 


Paragraph 3 Section B;


“Each parent shall be entitled to and shall promptly provide to the other parent (within three (3) days of receipt of same) information from all pediatricians, physicians, dentists, consultants or specialists attending the minor child. as well as information from teachers, schools, camp, etc.”


 


Conclusion: The fact that it says “(within three (3) days of receipt of same )” lends support to the conclusion below that each parent is given the right to make “routine decisions” regarding medical care provided such is not what might be deemed a “major decision”


 


And that in the event one parent elects to inform the other in advance to “seek their input” if such input is not in alignment with the parent who has care of the child then that parent should still have the right to move forward as they feel appropriate “without unreasonable interference from the other parent”


For Example: If other parent wishes to go to a church and I have expressed I don’t agree such is best suited for child then other parent still has the right to go to that church service as they feels appropriate “without unreasonable interference from (me) the other parent” as such is a “routine decision” and not a “major decision”


My view of a Major decision would be to enroll the child in a full time religious school requiring mutual consent.


A Major medical decision would involve anesthesia, surgery etc. Taking child to a doctor for a runny nose or in this case a sore knee should not constitute a major decision.


 


Paragraph 3 Section G;


During their time with the child, each parent shall have the right to follow his/her own style of Child-rearing and discipline without unreasonable interference from the other parent and that parent will have the responsibility to make routine decisions of a daily basis unless otherwise stated.


 


Conclusion: Being that this was not an emergency this was then a “routine decision” and as such I have the right to decide where she receives such care.


What law or case law would indicated this is not a reasonable conclusion?


 


Paragraph 3 Section N;


If medication has been prescribed for the child, then the medicine shall accompany the child and shall be given as prescribed. The doctor's name and phone number shall be shared. The other parent shall be notified as soon as practical in the event of an illness or accident happening to the child while in the care of one parent.


 


Conclusion: Keep the other parent timely notified


 


Paragraph 3 Section T;


In the event of an emergency, the parent with whom the child may be is to make all decisions necessary to preserve the health of the child. The other parent shall be contacted immediately as soon as possible after the child's safety is secured and prior to contacting any other third parties (other than medical/emergency personnel).


 


Conclusion: This was not an emergency so this section is not relevant.


 


Paragraph 3 Section W;


 


A parent having physical residence of the minor child shall at the time take responsibility for meeting medical and dental emergencies, and, in an emergency, the permission of both parents shall not be necessary. Both parties have the right to:


 



  1. participate in making major decisions affecting the child, including but not exclusively limited to, authorizing major medical, dental, institutional, psychiatric or other care, schooling and educational placement and religious activities.


 



  1. inspect and receive the child's medical records;


 


Conclusion: Again similar to Section 3 Paragraph T above and the language is careful to include the word “major” in front of the words; “medical, dental…


 


The word discipline is up there too. Do I need to receive mutual consent to ground my child?


The word religious is up there. Do I need to receive mutual consent to take my child to church? To enroll the child in full time religious school. Yes, Major.


Do I need mutual consent every time I take my child to the pediatrician?


And what if my prior spouse who lives an hour away demands the doctor is always right down the street from them? Do I have to take cow tow to a domineering former spouse on every minor decision because they want to classify everything as a "major" decision so they can control my every move?


 


No, as that is not reasonable.


 


Therefore again, what law or case law would indicated that this current situation of seeing a Chiropractor and similar “routine medical, dental, etc. decisions” would require prior mutual consent of the other parent?


 


 


 


 


Thank you so kindly for your reference to law or case law.

Expert:  Joseph replied 1 year ago.

As I have been doing this for fifteen years, my statements were not "arguable conjecture". I can tell you with a very high level of certainty that your argument is misplaced. In fact, several statements within your post demonstrate that you should not prevail in court.

.

Your paragraph 3, section A states, "Prior to making a major decision affecting the child, the parents will consult with each other regarding substantial questions relating to living arrangements, travel and transportation, religion, educational programs, moral, social, recreational, and legal matters, discipline, and medical and dental care." A clear reading of this language indicates that a "major decision" includes "medical...care". Contrary to what you stated later in your post, the word "major" is not used immediately prior to (and therefore limiting) the word "medical".

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Likewise, your argument regarding paragraph 3, section B is flawed. This paragraph merely requires that each parent promptly notify the other of certain information, it does not define or limit what constitutes a "major" decision.

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I would, however, agree with your statements regarding emergency care. Such care is, of course, provided on an emergency basis and, as such, does not require an agreement. To require otherwise could lead to the illogical result of causing harm to the child.

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I did not provide caselaw initially as it did not seem necessary. First, this is a rather well-settled area of law and should not need caselaw. Second, and likely for this reason, there does not appear to be much caselaw directly on-point. My speculation is that there is very little disagreement on this issue and, as such, very little caselaw on it as well. Nevertheless, I did manage to find a case that provide some direction. The following was taken from Smith v. Smith, 971 So.2d 191 (Fla. 1st DCA 2007):

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[7][8] Addressing the merits, we review the trial court's award of shared parental responsibility for an abuse of discretion and look to see whether competent substantial evidence supports the award. See Witt v. Goben, 940 So.2d 526 (Fla. 1st DCA 2006).

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The pertinent statute provides:
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"Shared parental responsibility" means a court-ordered relationship in which both parents retain full parental rights and responsibilities with respect to their child and in which both parents confer with each other so that major decisions affecting the welfare of the child will be determined jointly.

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§ 61. 046(15), Fla. Stat. (2005). This relationship contemplates that the parties will mutually confer on major decisions (e.g., medical, religious, educational) affecting the
child's welfare and will reach agreement. See Sotnick v. Sotnick, 650 So.2d 157, 159 (Fla. 3d DCA 1995); Kuharcik v. Kuharcik, 629 So.2d 224 (Fla. 4th DCA 1993). "The
court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child." § 61.13(2)(b)2., Fla. Stat. (2005).

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End of quoted language.
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As you can see from the text of the caselaw, medical decisions are considered major decisions, as has been discussed.

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