I'm a victim of the unconstitutional Title IV-D program and need to get everyone that's being stripped of life, liberty, and property the help we need and the justice we deserve. The Florida Department of Revenue is criminalizing being poor or working class with illegal driver's license suspensions, incarcerations, wage garnishments, confiscation of personal property, and many other actions that violate the Constitution. These practices harm families more than they help; when a driver's license is suspended, a person can no longer work or provide support. This corrupt system prioritizes state revenue over family welfare. Let's stop this falsely run system and demand justice for all affected parents. Sign this petition to end these unconstitutional practices now!

 

Fix Family Courts Logo

Florida Family Code Statute 61.13 is unconstitutional on its face: see exactly where and how

Title IV-D is where the Federal Government pays the States a kickback for collecting child support without any requirement that the state act within constitutio...

Ron B Palmer: Jul 19, 2013 | Last Modified: Jul 19, 2013

 

Post ID: 6521

 

Home

divorce child custody blog

florida statute 61 13 covering divorce and child custody is unconstitutional on its face see exactly where and how

Florida Statute 61.13 is unconstitutional on many fronts. The following is the complete text of the statute with specific sections highlighted and the author’s comments embedded inline in red text. The Florida legislators need to go to work and fix this statute so that it reflects the fact that parents have rights and that those rights are fundamental liberty interests protected by the First and Fourteenth Amendments to the U.S. Constitution. Our Constitution is the supreme law of our land and NO state may make any law that violates the protections afforded us in this document as interpreted by United States Supreme Court opinions. Children also have constitutional rights and this statute violates their rights as well when it allows a divorce court judge to arbitrarily take away their right to equal free association with each parent and the right to equally receive the moral, religious, and civic education that their parents provide through example on a daily basis. There are additional statutes under the Florida Family Code that are equally unconstitutional. The shame doesn’t stop with just this section.

 

61.13 Support of children; parenting and time-sharing; powers of court.—

(1) (a) In a proceeding under this chapter, the court may at any time order either or both parents who owe a duty of support to a child to pay support to the other parent or, in the case of both parents, to a third party who has custody in accordance with the child support guidelines schedule in s. 61.30.

 

What this means is that at any time with or without a hearing and with or without any proof that a parent isn’t supporting their child, the court can order this. They don’t even pay lip service to due process on this one. Why let the Fourteenth Amendment get in the way of getting the State’s federal payments for ordering child support?

 

1. All child support orders and income deduction orders entered on or after October 1, 2010, must provide: a. For child support to terminate on a child’s 18th birthday unless the court finds or previously found that s. 743.07(2) applies, or is otherwise agreed to by the parties; b. A schedule, based on the record existing at the time of the order, stating the amount of the monthly child support obligation for all the minor children at the time of the order and the amount of child support that will be owed for any remaining children after one or more of the children are no longer entitled to receive child support; and c. The month, day, and year that the reduction or termination of child support becomes effective. 2. The court initially entering an order requiring one or both parents to make child support payments has continuing jurisdiction after the entry of the initial order to modify the amount and terms and conditions of the child support payments if the modification is found by the court to be in the best interests of the child; when the child reaches majority; if there is a substantial change in the circumstances of the parties; if s. 743.07(2) applies; or when a child is emancipated, marries, joins the armed services, or dies. The court initially entering a child support order has continuing jurisdiction to require the obligee to report to the court on terms prescribed by the court regarding the disposition of the child support payments.

 

The interesting thing here is that the Court has no authority or jurisdiction to make a best interest determination. They only get that authority when a parent has been proven unfit or to have placed the child in clear and present danger. Due process again isn’t even given lip service and you would think the Courts have never even heard of the Fourteenth Amendment.

 

(b) Each order for support shall contain a provision for health insurance for the minor child when health insurance is reasonable in cost and accessible to the child. Health insurance is presumed to be reasonable in cost if the incremental cost of adding health insurance for the child or children does not exceed 5 percent of the gross income, as defined in s. 61.30, of the parent responsible for providing health insurance. Health insurance is accessible to the child if the health insurance is available to be used in the county of the child’s primary residence or in another county if the parent who has the most time under the time-sharing plan agrees. If the time-sharing plan provides for equal time-sharing, health insurance is accessible to the child if the health insurance is available to be used in either county where the child resides or in another county if both parents agree. The court may require the obligor to provide health insurance or to reimburse the obligee for the cost of health insurance for the minor child when insurance is provided by the obligee. The presumption of reasonable cost may be rebutted by evidence of any of the factors in s. 61.30(11)(a). The court may deviate from what is presumed reasonable in cost only upon a written finding explaining its determination why ordering or not ordering the provision of health insurance or the reimbursement of the obligee’s cost for providing health insurance for the minor child would be unjust or inappropriate. In any event, the court shall apportion the cost of health insurance, and any noncovered medical, dental, and prescription medication expenses of the child, to both parties by adding the cost to the basic obligation determined pursuant to s. 61.30(6). The court may order that payment of noncovered medical, dental, and prescription medication expenses of the minor child be made directly to the obligee on a percentage basis. In a proceeding for medical support only, each parent’s share of the child’s noncovered medical expenses shall equal the parent’s percentage share of the combined net income of the parents. The percentage share shall be calculated by dividing each parent’s net monthly income by the combined monthly net income of both parents. Net income is calculated as specified by s. 61.30(3) and (4). 1. In a non-Title IV-D case, a copy of the court order for health insurance shall be served on the obligor’s union or employer by the obligee when the following conditions are met: a. The obligor fails to provide written proof to the obligee within 30 days after receiving effective notice of the court order that the health insurance has been obtained or that application for health insurance has been made; b. The obligee serves written notice of intent to enforce an order for health insurance on the obligor by mail at the obligor’s last known address; and c. The obligor fails within 15 days after the mailing of the notice to provide written proof to the obligee that the health insurance existed as of the date of mailing. 2. a. A support order enforced under Title IV-D of the Social Security Act which requires that the obligor provide health insurance is enforceable by the department through the use of the national medical support notice, and an amendment to the support order is not required. The department shall transfer the national medical support notice to the obligor’s union or employer. The department shall notify the obligor in writing that the notice has been sent to the obligor’s union or employer, and the written notification must include the obligor’s rights and duties under the national medical support notice. The obligor may contest the withholding required by the national medical support notice based on a mistake of fact. To contest the withholding, the obligor must file a written notice of contest with the department within 15 business days after the date the obligor receives written notification of the national medical support notice from the department. Filing with the department is complete when the notice is received by the person designated by the department in the written notification. The notice of contest must be in the form prescribed by the department. Upon the timely filing of a notice of contest, the department shall, within 5 business days, schedule an informal conference with the obligor to discuss the obligor’s factual dispute. If the informal conference resolves the dispute to the obligor’s satisfaction or if the obligor fails to attend the informal conference, the notice of contest is deemed withdrawn. If the informal conference does not resolve the dispute, the obligor may request an administrative hearing under chapter 120 within 5 business days after the termination of the informal conference, in a form and manner prescribed by the department. However, the filing of a notice of contest by the obligor does not delay the withholding of premium payments by the union, employer, or health plan administrator. The union, employer, or health plan administrator must implement the withholding as directed by the national medical support notice unless notified by the department that the national medical support notice is terminated. b. In a Title IV-D case, the department shall notify an obligor’s union or employer if the obligation to provide health insurance through that union or employer is terminated.

 

Title IV-D is where the Federal Government pays the States for collecting child support. This is one of the issues that drives the state to ignore your rights and award unequal custody. By awarding unequal custody it becomes easier for the state to justify awarding child support to another parent and get their cut of the Title IV-D money.

 

3. In a non-Title IV-D case, upon receipt of the order pursuant to subparagraph 1., or upon application of the obligor pursuant to the order, the union or employer shall enroll the minor child as a beneficiary in the group health plan regardless of any restrictions on the enrollment period and withhold any required premium from the obligor’s income. If more than one plan is offered by the union or employer, the child shall be enrolled in the group health plan in which the obligor is enrolled. 4. a. Upon receipt of the national medical support notice under subparagraph 2. in a Title IV-D case, the union or employer shall transfer the notice to the appropriate group health plan administrator within 20 business days after the date on the notice. The plan administrator must enroll the child as a beneficiary in the group health plan regardless of any restrictions on the enrollment period, and the union or employer must withhold any required premium from the obligor’s income upon notification by the plan administrator that the child is enrolled. The child shall be enrolled in the group health plan in which the obligor is enrolled. If the group health plan in which the obligor is enrolled is not available where the child resides or if the obligor is not enrolled in group coverage, the child shall be enrolled in the lowest cost group health plan that is accessible to the child. b. If health insurance or the obligor’s employment is terminated in a Title IV-D case, the union or employer that is withholding premiums for health insurance under a national medical support notice must notify the department within 20 days after the termination and provide the obligor’s last known address and the name and address of the obligor’s new employer, if known. 5. a. The amount withheld by a union or employer in compliance with a support order may not exceed the amount allowed under s. 303(b) of the Consumer Credit Protection Act, 15 U.S.C. s. 1673(b), as amended. The union or employer shall withhold the maximum allowed by the Consumer Credit Protection Act in the following order: (I) Current support, as ordered. (II) Premium payments for health insurance, as ordered. (III) Past due support, as ordered. (IV) Other medical support or insurance, as ordered. b. If the combined amount to be withheld for current support plus the premium payment for health insurance exceed the amount allowed under the Consumer Credit Protection Act, and the health insurance cannot be obtained unless the full amount of the premium is paid, the union or employer may not withhold the premium payment. However, the union or employer shall withhold the maximum allowed in the following order: (I) Current support, as ordered. (II) Past due support, as ordered. (III) Other medical support or insurance, as ordered. 6. An employer, union, or plan administrator who does not comply with the requirements in sub-subparagraph 4.a. is subject to a civil penalty not to exceed $250 for the first violation and $500 for subsequent violations, plus attorney’s fees and costs. The department may file a petition in circuit court to enforce the requirements of this subparagraph. 7. The department may adopt rules to administer the child support enforcement provisions of this section that affect Title IV-D cases. (c) To the extent necessary to protect an award of child support, the court may order the obligor to purchase or maintain a life insurance policy or a bond, or to otherwise secure the child support award with any other assets which may be suitable for that purpose. (d) 1. All child support orders shall provide the full name and date of birth of each minor child who is the subject of the child support order. 2. If both parties request and the court finds that it is in the best interest of the child, support payments need not be subject to immediate income deduction. Support orders that are not subject to immediate income deduction may be directed through the depository under s. 61.181 or made payable directly to the obligee. Payments made by immediate income deduction shall be made to the State Disbursement Unit. The court shall provide a copy of the order to the depository.

 

Here it doesn’t even matter if the parents agree. The moment one parent files for divorce, both parents lose their parental rights completely. There is no hearing. There is no due process. Nobody reads you your rights. The state simply says that filing for divorce grants the state extra-constitutional power to take over your life.

 

3. For support orders payable directly to the obligee, any party, or the department in a IV-D case, may subsequently file an affidavit with the depository alleging a default in payment of child support and stating that the party wishes to require that payments be made through the depository. The party shall provide copies of the affidavit to the court and to each other party. Fifteen days after receipt of the affidavit, the depository shall notify all parties that future payments shall be paid through the depository, except that income deduction payments shall be made to the State Disbursement Unit.

 

Here again, nothing needs to be proven. There doesn’t need to be a hearing. All it takes is for the other party to file an accusation and your rights are infringed again.

 

(2) (a) The court may approve, grant, or modify a parenting plan, notwithstanding that the child is not physically present in this state at the time of filing any proceeding under this chapter, if it appears to the court that the child was removed from this state for the primary purpose of removing the child from the court’s jurisdiction in an attempt to avoid the court’s approval, creation, or modification of a parenting plan. (b) A parenting plan approved by the court must, at a minimum, describe in adequate detail how the parents will share and be responsible for the daily tasks associated with the upbringing of the child; the time-sharing schedule arrangements that specify the time that the minor child will spend with each parent; a designation of who will be responsible for any and all forms of health care, school-related matters including the address to be used for school-boundary determination and registration, and other activities; and the methods and technologies that the parents will use to communicate with the child. (c) The court shall determine all matters relating to parenting and time-sharing of each minor child of the parties in accordance with the best interests of the child and in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act, except that modification of a parenting plan and time-sharing schedule requires a showing of a substantial, material, and unanticipated change of circumstances.

 

Fit parents determine the child’s best interest NOT the state. There is no mention of any rights of the parents. There is nothing else required for the judge to deprive you of your fundamental parental rights other than to say “it’s in the child’s best interests.” You have no chance of winning an appeal based on best interest. The Appeals court will tell you that only the trial court can evaluate the evidence and that they will not overturn their determination unless some error that is so egregious that it can’t be hidden was made. The American Bar Association has an entire book titled the Judges Guide that tells judges how to evaluate best interest and it boils down to the judge has to attempt to predict future outcomes or in other words predict the future.

 

This is overly broad, arbitrary, capricious and beyond the court’s authority under the constitution. It violates substantive and procedural due process. It also violates equal protection as much more stringent requirements apply to depriving married parents of their parental rights.

 

1. It is the public policy of this state that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys, of childrearing. There is no presumption for or against the father or mother of the child or for or against any specific time-sharing schedule when creating or modifying the parenting plan of the child.

 

Apparently, it is NOT the public policy of the State of Florida to respect the rights of parents, except that section 760.01 which states the purpose of Florida’s Civil Rights Act says that it is the public policy of the state “to promote the interests, rights, and privileges of individuals within the state.” Apparently, that doesn’t apply to parents in divorce as they have lesser rights than married parents. If the State of Florida respected the fundamental liberty interests and rights of parents in divorce then the public policy of the State of Florida would say that parents have equal rights to their children unless proven unfit or to be a clear and present danger to their child.

 

The state does not presume for or against either party based on sex. That would violate the constitution. What it does instead is attempt to discriminate equally. The State can’t presume that parents have rights. That would be going too far. It presumes instead the power to screw one or the other parent regardless of sex.

 

There is no presumption of a time-sharing schedule because the only proper, constitutional or equitable presumption would be equal sharing. However, if they did that then they wouldn’t get payments from the federal government.

 

2. 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. Evidence that a parent has been convicted of a misdemeanor of the first degree or higher involving domestic violence, as defined in s. 741.28 and chapter 775, or meets the criteria of s. 39.806(1)(d), creates a rebuttable presumption of detriment to the child. If the presumption is not rebutted after the convicted parent is advised by the court that the