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Florida is a Surrogacy-Friendly State

Florida is a Surrogacy-Friendly State

Family Law, Florida Custody Litigation, Miami Child Custody Attorney, Miami Civil Trial Attorney, Miami Surrogacy Attorney , , , ,

Surrogacy has become an increasingly popular option for those struggling to conceive or carry a child. Even though entering into a surrogacy agreement is illegal in some states, that is not the case in Florida. In fact, Florida surrogacy laws are some of the least restrictive in the country. Nonetheless, surrogacy law is complex and a qualified Miami surrogacy attorney can guide clients through the surrogacy process.

Two Legal Surrogacy Agreements

Under Florida surrogacy laws both forms of surrogacies are allowed, gestational surrogacy and traditional surrogacy. Florida statute 742.15 governs Gestational Surrogacy Agreements, while statute 62.213 governs Pre-Planned Adoption Agreements, also called Traditional Surrogacy Agreements. Intended parents, legally referred to as the “commissioning couple,” can enter either of these agreements.

    • Gestational Surrogacy Agreement (GSA)

Pregnancy is created through in vitro fertilization, at least one of the intended parents must contribute genetic material, and the surrogate is prohibited from donating her own egg. Permitted combinations include:

    • egg and sperm from the intended parents
    • egg from intended mother and sperm from separate donor
    • sperm from intended father and egg from separate donor

To enter this type of agreement, the commissioning couple must establish the health risks, confirmed by a physician’s diagnosis, that prevent the intended mother from carrying the child herself.

    • Traditional Surrogacy Agreement (TSA)

Traditional surrogacy is significantly less popular than gestational due to legal issues. In this type of agreement, the surrogate can donate her own egg to create the pregnancy. The egg is fertilized with the intended father’s sperm, inside the surrogate’s uterus. Therefore, the child is biologically connected to the surrogate.

Parental Rights in Surrogacy Agreements

As dictated by Florida surrogacy laws, a written contract needs to be signed for either type of surrogacy agreement. An experienced Miami surrogacy attorney can help commissioning couples draft these contracts. However, the assignment of parental rights may depend on whether the surrogacy was gestational or traditional.

Gestational Surrogacy — The surrogate is not biologically connected to the child and therefore has no legal parental right to the child after giving birth. She relinquishes away any and all of her parental rights when signing the contract. The commissioning couple automatically has the parental and custodial rights of the child after the birth.

Traditional Surrogacy — Since the surrogate has a biological connection with the child, the assignment of parental and custody can become complicated. She may consent in the contract to give up her parental rights, but she has the right to rescind her consent and terminate the contract within 48 hours of the birth of the child. In which case, the legal counsel of a Miami surrogacy attorney becomes necessary for the commissioning couple.

The assistance of a seasoned Miami surrogacy attorney is beneficial for those who want to enter a surrogacy agreement, whether you are an intended parent or the surrogate. At Pimentel & Castillo, we are committed to make the process as smooth as possible for our every client. If legal drawbacks do occur, we are skilled at defending our client’s rights in court. Call us today for a free consultation.

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Governing and Jurisdiction Clauses in Contracts Q&A

Governing and Jurisdiction Clauses in Contracts Q&A

Miami Civil Trial Attorney, Miami contract attorney , , , , ,

A contract represents a legally binding agreement between two or more parties. However, even when all the parties sign on the dotted line contract disputes may still come up. When a dispute occurs and both parties have chosen to resolve it through civil litigation important questions come up, particularly when the two parties operate in different states. Where will the case be heard? Who will interpret the contract’s terms and based on what set of laws?

To significantly reduce the possibility of a lengthy and expensive dispute, it is advisable to get ahead of the problem by answering these questions before contract disputes arise by enlisting the expertise of a Miami civil litigation lawyer during the drafting of any contract. They will be sure to include both a Governing Clause and Jurisdiction Clause.

What is a Governing Clause?

The first step in determining which laws will be applied toward the resolution of contract disputes is to include a governing clause (also called choice of law clause) within the contract. Laws, especially those governing business contracts, vary by state. So, there may be various legal interpretations of the same contract depending on which state laws are applied. By including a governing clause, both parties agree on which state’s laws will govern the contract and interpret its terms should a dispute arise. Governing clauses are especially important when the parties signing the contract, such as businesses, are operating in separate states.

What is a Jurisdiction Clause?

Once a governing clause is agreed on, it is now time for the parties to choose which court(s) will have the right to hear any resulting contract disputes. This agreed-upon condition must be explicitly stated in the form of a jurisdiction clause (also called forum selection clause). By including a jurisdiction clause, both parties establish and agree on which court(s) will hear and decide on any disputes that arise from the contract. The jurisdiction clause and governing clause do not necessarily have to match, a specified state court can be made to apply laws from another state. There are two types of jurisdiction clauses.

      • Exclusive Jurisdiction — Only the court(s) specified in the clause have the right to handle contract disputes. Parties must litigate their case in those specified courts.
      • Non-Exclusive Jurisdiction — Both the specified court(s) and other courts not explicitly stated in the clause can handle disputes. Parties can choose to file their lawsuit in these unspecified courts.

Governing and jurisdiction clauses must be written precisely to prevent any misunderstandings and disagreements over jurisdiction in the future. The right choice of state laws and forum can also benefit a party and help them avoid disadvantages such as costly out-of-state litigation or unfavorable state laws. Consult with an experienced Miami civil litigation lawyer to ensure both these clauses, as well as the contract itself, are properly drafted.

At Pimentel & Castillo, our Florida civil litigation attorneys are skilled at drafting contracts and representing our clients in contract disputes. Call and request a free consultation with our experienced Florida civil litigation attorneys today.

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When to Update a Florida Parenting Plan

When to Update a Florida Parenting Plan

Divorce Attorney, Family Law, Florida Custody Litigation, Florida Family Court, Miami Child Custody Attorney, Miami Divorce Attorney , , , , ,

According to Florida family law, parents in a divorce case are encouraged to develop and agree to a parenting plan. The parenting plan is a legally-binding agreement that must be approved by the court. If they are unable to agree to a parenting plan, the court will intervene and decide what parenting plan is in the best interest of the child. However, after some time, a parenting plan can prove to be ineffective or outdated and may need to be modified.

Parenting plan modifications must also be approved by a Florida family court. The process of modifying a Florida parenting plan can be complex, so it is best to consult with a seasoned Miami family law attorney when petitioning the court for a modification.

Events That May Trigger Parenting Plan Modifications

There are a variety of reasons for wanting to modify a parenting plan. Any revisions and modifications one wishes to make to a Florida parenting plan must be based on the child’s best interest. Still, some life events and/or changes in the child’s needs may prompt a parenting plan modification. These changes may concern financial support calculations, visitation schedules, time-sharing arrangements, and even custody arrangements.

      • Remarriage Especially if it involves relocation or step-children.
      • Relocation Especially if the new distance between the parents’ households is significant.
      • Maturation of the child Especially if the current plan is no longer age-appropriate.
      • Changes in the child’s schools or school schedules
      • Changes in jobs Especially if it involves relocation, significant changes in income, or unemployment.
      • Negative effects of current Florida parenting plan on the child’s development
      • Unfit parenting status Especially if it concerns recent domestic violence charges.

What Florida Family Court Considers

Just like in child custody cases, the Florida family court will make a decision it believes to be in the child’s best interest. After one or both parents files a petition for modifying the parenting plan to the court, there will be a hearing to determine if there is just cause for a modification. The court will judge the severity of the major life changes cited as the reasons for the requested parenting plan modification. One parent or both parents have to prove to the court that the current plan no longer meets the child’s needs.

Not all modifications are approved by the Florida family court. Working with an experienced Miami family law attorney can increase your chances of successfully modifying your Florida parenting plan.

The Florida family law professionals at Pimentel & Castillo can provide the right legal guidance and assist in petitioning the court on your behalf. Call us today for a free consolation.

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What Does the Florida Court Consider When Deciding Child Custody?

What Does the Florida Court Consider When Deciding Child Custody?

Family Law, Florida Custody Litigation, Miami Child Custody Attorney, Miami Divorce Attorney , , , ,

Florida courts have wide discretionary authority when it comes to deciding Florida child custody in divorce cases, but they are most concerned with making a decision that will be in the “best interests of the child.” Essentially, this means the judge’s decisions on how custody rights and parental responsibilities will be divided are always tailored to fit the unique needs of the child.

An experienced Miami child custody attorney can address clients’ Florida child custody litigation needs and defend their parental and custody rights, so that the final custody arrangement will be favorable for both the child and parent.

In general, Florida family law upholds that children generally benefit from maintaining frequent contact and interaction with both parents and favors custody arrangements that accommodate this. The following are the best interest factors Florida courts most often consider before making a custody ruling in a divorce case.

Health, Safety, and Ethics

When deciding on a custody arrangement that will be in the best interests of the child, Florida courts consider the child’s health, safety, and moral development when determining best interest factors. A judge will review a parent’s behavior and the home environment thoroughly to uncover any elements that could disrupt the normal mental and physical development of the child. If there is evidence of domestic violence, child abuse, neglect, or abandonment, a parent or both parents could lose their custody and visitation rights. Additionally, to protect a child’s ethical development, a judge may consider a parent’s mental and physical state based on circumstances such as adulterous relationships prior to the divorce, frequent causal relationships with multiple partners, verbal abuse, substance abuse, and illegal activities.

Emotional and Developmental Needs

Other major best interest factors that are emphasized by Florida family law concern the emotional and developmental needs of a child especially concerning their general welfare, familial connections, education, and healthcare. These factors include:

    • Ability and willingness to be involved in their child’s life
    • Demonstrated ability to meet their child’s developmental needs
    • Love, affection, and existing relationship with their child
    • Awareness and participation in their child’s daily school and extracurricular activities
    • Familiarity with their child’s social circles and preferences
    • Home situation and the extent of its stability and permanence
    • Willingness to cooperate with other parent and honor time-sharing schedules

After reviewing all appropriate best interest factors, detailed in Florida Statute 61.13, a judge has the information needed to decide custody arrangements. In some instances, that decision may involve granting custody to a legal guardian. Sometimes, when a child is older and mature enough, a judge may allow the child to voice their custody preferences.

Florida family law, especially concerning child custody litigation, can be very complex. Call Pimentel & Castillo to have an experienced Miami child custody attorney represent you in a divorce case and defend your parental and custody rights.

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Adopting a Child With Birth Siblings

Adopting a Child With Birth Siblings

Family Law, Foster Care Adoption, Miami adoption attorney , ,

When one makes the decision to adopt a child who has birth siblings, it is understandable that there may be some added complexities. Even when a child does not have birth siblings at the time of the adoption, there is always the chance that his birth mother will go on to have other children. Navigating the situation can be difficult for the adoptive parents, as well as the children involved. Thus, it is important to not only know what the law says about sibling interactions, but consult with an experienced Miami family lawyer who has experience with adoptions involving these circumstances.

Laws Governing Sibling Relationships

It should serve as no surprise that keeping sibling relationships intact is typically (though not always) beneficial to the children involved. With that in mind, the courts have established some legal guidelines for these all important relationships. The Fostering Connections to Success and Increasing Adoptions Act of 2008 was the first piece of legislation that addressed this topic on a Federal level. It outlines the importance of keeping siblings in the same foster home whenever doing so is feasible. When this is not an option, the law requires that frequent visitations occur, permitted this would not be to the detriment of the children.

The issue of post-adoptive requirements of parents of adopted children with birth siblings is ultimately left up to the states. To date, Florida’s legislation only addresses adoptions completed by relatives, such as a grandparent. One of these is Statute 63.022, which seeks to keep siblings together whenever possible, whether it be in a foster home or an adoption. Another piece of legislation (63.0427) details the need for continued communication with birth siblings whenever the court deems appropriate. Both of these statutes come with quite a bit of gray area. Thus, the courts must consider the specifics of each unique case before determining what is best for the child.

If you are interested in welcoming a child into your home through adoption, selecting the right Miami family lawyer is of the utmost importance. Our office offers free consultations, and we would love to meet with you to discuss your unique situation. Give us a call today to schedule a meeting with one of our skilled attorneys.

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