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79. THE JUDGE RULES: Frequent Requests: Tree Column

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

The most frequent requests I get are for (1.) Repeat of the tree column, (2.) Repeat of the homeowners’ association column and (3.) More information on custody/support of children and grandparent’s rights. Today the “tree column” is reprinted. Next week a new column on homeowner’s associations will be printed. The following weeks, new columns on custody, grandparents’ rights and child support will be published.

“A landowner in an urban area has a duty to exercise reasonable care to prevent unreasonable risk of damage to adjoining property arising from defective or unsound trees on the premises.” (709 So2d 615) [New Note: With rental property, the landlord owns the land and the trees.]

If there is sufficient evidence that the landowner knew or should have known of the unreasonable risk, the landowner might be liable for damage caused by a tree. If there is any evidence offered, the jury would decide if the evidence was sufficient to prove notice of the defective condition of the tree/trees.

A court may consider the defense that a falling tree was an act of God. In the legal sense, an act of God is an extraordinary manifestation of the forces of nature without the intervention of man. An act is not considered an act of God, in the legal sense, if it could have been prevented by the exercise of reasonable diligence or ordinary care.

It appears from prior court cases that if a healthy tree falls into your yard because of an act of God, the disposal of that fallen tree is now your responsibility.

If the trunk of a tree is on more than one person’s property, each property owner owns a share of the tree. According to prior court cases, each may trim what is on his property but none may do damage to the tree without the consent of all owners. I suggest you talk with your neighbor first.

According to prior court cases, a property owner may trim branches from a neighbor’s tree which hang over his property as long as the tree itself is not harmed. Again, I suggest that you talk with your neighbor first. In Florida, a neighbor probably cannot win a complaint that the adjoining landowner’s trees block their sun or create too much shade. A landowner can grow his trees as tall and as thick as he wishes because he has a right to use his own land.

Sometimes tree roots from an adjoining property cause sidewalks and driveways to buckle. Court cases have ruled that a homeowner has no duty to control the subterranean growth of his trees. A neighbor can trim roots which are on his property as long as he does not harm the tree.

*****(This example is based on an actual closed case.)*****

A property owner sued his neighbor. Among other complaints, he claimed that branches from the neighbor’s trees had caused damage to his roof.

The Judge writing for the 3rd District Court of Appeal ruled: The suing party had the right to trim the branches which hung over his roof as long as the tree itself was not harmed. It was his choice not to trim the branches. He has no cause of action against his neighbor because the untrimmed branches fell on his roof. (512 So2d 215)



80. THE JUDGE RULES: Homeowner’s Associations - Updated

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

Florida Statutes 720 sets forth the law on homeowner’s associations. Since I last wrote a column on the subject there have been some changes [reference column 34 on this website]. I admire all of you volunteer association directors who try to keep up with the legislation and try to do the right thing. I realize that it can be a thankless job. You have my thanks for all you do for your communities.

A homeowner’s association is responsible for the operation of a community or subdivision. The association must be incorporated. The officers and directors have a duty to act in the best interest of all parcel owners. All parcel owners are required to be members of the association.

The members must be given advanced notice of meetings of the board of directors and general meetings. At least one general meeting must be held each year. Directors are elected at the annual general meeting. A quorum must be present at the meetings. Unless a lower number is provided in the by-laws, a quorum is 30% of the members. Members usually have the right to vote by proxy. Minutes must be taken and maintained. Any parcel owner has the right to tape record or videotape meetings of the board of directors or general meetings. Members have a right to attend and speak briefly at meetings if the request to speak is submitted in writing.

Parcel owners must pay an assessment or amenity fee to the association. Failure to pay can result in a lawsuit. The statute says the prevailing party in such a lawsuit will be awarded attorney fees. A judgment against the parcel owner could result in the forced sale of the parcel. Money would be taken from the proceeds to pay off the debt. If a fine is levied against a member, the fine cannot become a lien against the member’s home.

All common areas and recreational facilities shall be available to all parcel owners and their guests. They may invite public officials or candidates to appear and speak in common areas and recreational facilities.

Parcel owner’s have a right to peaceably assemble and that right shall not be unreasonably restricted. Members have a right to construct an access ramp if medically necessary. Members have the right to display one portable, removable American flag. In addition, on patriotic holidays, flags which are no more than 4 1/2 feet by 6 feet honoring specific branches of service can be displayed. A parcel owner may display a reasonable sign provided by a security service.

Election disputes shall go to binding arbitration. Disputes regarding use of or changes to the parcel or common areas and enforcement disputes shall go to mandatory mediation. These are to be filed with the Department of Business and Professional Regulation, not the court. “Strategic Lawsuits Against Public Participation” or “SLAPP” suits are prohibited.

*****(This example is based on an actual closed case.)*****

A homeowner added a screen porch to her home. The Association objected because it violated the set back requirements.

The Judge writing for the 2nd District Court of Appeal ruled: An added porch becomes part of the structure and is subject to the set back restriction. (885 So2d 435)



81. THE JUDGE RULES: Custody and Parental Responsibility

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

It is the public policy of the State of Florida to encourage divorced parents to share the responsibility of parenting when possible. This is called “shared parental responsibility.” This ideal does not always work and the court may grant to one party responsibility for specific aspects of the child’s welfare. Because parents can’t agree, courts are called upon to determine which parent gets to decide the length of the child’s hair or which school the child will attend or what medical treatment will be provided.

In determining residential placement of the child and responsibility for the child, fathers and mothers are given the same consideration by the courts.

The court can order that the child live with one parent who would be the “custodial parent” or the “primary residential parent.” The court could order visitation with the other parent. Both parents could still share in decision-making.

The court could order rotating custody or primary residential responsibility. The child would move from home to home and the parents would share in decision-making.

The court could order “sole parental responsibility” if it is in the child’s best interest. The court could award or deny visitation to the other parent. The residential parent would have the power to make all the decisions concerning the child.

A felony conviction of domestic violence creates a rebuttable presumption of detriment to the child. The parent who is convicted of domestic violence could be denied contact with the child, although that parent could still be required to pay child support.

A primary residential parent may need the court’s approval to relocate. A court must take six things into consideration. (1.) Whether the move would likely improve the quality of life for parent and child. (2.) The extent to which visitation rights have been exercised in the past. (3.) If the moving parent would cooperate with substitute visitation arrangements. (4.) Whether the substitute visitation would be adequate to maintain a meaningful relationship between the child and the non-residential parent. (5.) Whether the cost of transportation is affordable. (6.) Whether the move is in the child’s best interests. (Florida Statutes 61.13)

*****(This example is based on an actual closed case.)*****

The mother wanted primary residential responsibility for the child of the marriage. In addition, she wanted the court to allow her to move to another state. The Court awarded her primary residential responsibility but told her that she could not move. She appealed the ruling.

The Judge writing for the 1st District Court of Appeal ruled: It would not be in the best interest of the child to move five hours away. The child’s ties to his current community are significant. The move would interfere with the father’s visitation rights. The lower court ruling stands. The mother cannot move five hours away. (30 FLW D177)



82. THE JUDGE RULES: Grandparent’s Rights and Legal Standing

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

We have a lot of grandparents in our community. Many of them have issues about their visitation rights with their grandchildren.

If a child has been residing with grandparents in a stable relationship, the court could recognize the grandparents as having the same standing as parents for evaluating what custody arrangements are in the best interest of the child. (Florida Statutes 61.13)

If a child has been living with grandparents for at least six months, the grandparents are to be noticed if adoption proceedings are set for a hearing. (Florida Statutes 63.0425)

If non-relatives adopt the child, all legal relationships between the adopted child and the adopted child’s former relatives are severed including with grandparents. (Florida Statutes 63.172)

A court will only order grandparent visitation under certain circumstances. The court may order grandparent visitation when the parents get a divorce. The court may order grandparent visitation if a parent has deserted the child or if the child is a child born out of wedlock. The grandparents must prove that visitation is in the child’s best interest.

To determine if grandparent visitation is in the grandchild’s best interest, the court will consider the willingness of the grandparent to promote a close relationship between the child and the child’s parents. The court will consider the relationship between the child and the grandparents. The child’s opinion may be considered. The mental and physical health of all parties may be considered. (Florida Statutes 752)

Grandparents would have legal standing to seek judicial enforcement of court ordered visitation. But “a court may not order that a child be kept within the state or jurisdiction of the court solely for the purpose of permitting visitation by the grandparents.”

The court shall refer disputes over grandparent visitation to mediation.

*****(This example is based on an actual closed case.)*****

The wife filed for a divorce. The husband’s parents filed for visitation rights with their grandchildren. The wife voluntarily dismissed her divorce action. She wanted the court to dismiss the grandparent’s petition because there was no longer a divorce pending. The grandparents argued that since a divorce was pending when they filed, the court has the authority to order visitation for them.

The judge writing for the 3rd District Court of Appeal ruled: The court does not have the authority to act on grandparent visitation where there is an intact family unit and no pending petition for divorce. The grandparents’ petition is dismissed. (603 So.2d 1323)



83. THE JUDGE RULES: Child Support

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

It is public policy that parents should support their children. The court can order a parent to reimburse the government for its financial assistance. The court can order a parent to pay child support even if that parent is never allowed to have contact with the child.

When a court orders a parent to pay child support, the court retains jurisdiction to modify the order. The order could be modified if it is in the best interests of the child, when the child is no longer a dependent or when there is a substantial change in circumstances of the parties.

Each order for child support shall contain a provision for health care coverage for the child if it is reasonably available. The parents may be ordered to share in the costs. Florida Statutes 61.13

All child support shall be paid through a government depository unless the court finds that it is in the best interest of the child that payments not be made through the depository.

If the parent responsible for child support is employed, an income deduction order will be processed.

If the parent responsible for child support is not employed, the court may order the person to find a job. If a parent is not employed, child support may be calculated on minimum wage or it may be calculated on what the parent should be earning (imputed income). Income includes salary, wages, bonuses, disability benefits, workers’ compensation, settlements, unemployment compensation, pensions, retirement payments, social security, alimony, rental income and more.

Florida Statutes 61.30 provides a chart for judges to use to calculate child support. The actual or imputed income of both parents is added together. The number of children is considered. The chart states the total figure that should be allotted to that number of children. The judge then determines the percentage of each parent’s child support responsibility.

The court may determine that in addition to current child support, the parent owes back child support. This could be true even if a father did not know the child was his until the court ruled.

Failure to pay child support, may result in the suspension of the parent’s license to drive and the suspension of the parent’s motor vehicle registration. Failure to pay child support may result in the suspension of a parent’s professional license or certificate.

*****(This example is based on an actual closed case.)*****

The father and mother were never married and do not live together. The father was ordered to pay child support. Included in the amount he was ordered to pay was $95.92 for day care. The evidence showed that the maternal grandparents cared for the child after school. The child’s mother was not paying for day care. The father wanted his child support obligation reduced.

The Judge writing for the 5th District Court of Appeal ruled: It is appropriate to reduce the father’s child support payment by $95.92 since the mother is not paying for day care. (29 FLW D2705)



84. THE JUDGE RULES: Guardian Ad Litem

Laws change and this info may no longer be current.  To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).

A small child is in court to answer some questions concerning his parents’ divorce. The attorneys have their own agendas. Who is going to look out for the child’s best interest? The court could appoint a Guardian Ad Litem.

The court shall appoint a Guardian Ad Litem if a child is alleged to be the victim of child abuse, neglect or abandonment. The court may appoint a Guardian Ad Litem in family law cases. A court may appoint a Guardian Ad Litem when a pregnant minor must get court approval for an abortion.

The Guardian Ad Litem or “GAL” must be a citizen certified by the Guardian Ad Litem program or an attorney who will be acting as GAL instead of acting as an attorney on the case. Every GAL must pass a security background check.

The GAL shall act as an investigator or evaluator to help the court determine what action is in the child’s best interest. The GAL may interview the child and any witnesses. The GAL may inspect relevant records and documents. The GAL may arrange for impartial expert examinations of the child or the child’s parents.

The Guardian Ad Litem may address the court and may make recommendations which may include the wishes of the child.

The information and documents gathered by the GAL shall remain confidential except for the report given to the Court. That report will be available to both parties in the case.

The Guardians Ad Litem in Lake County are volunteers except for core staff. They take an intensive training course in order to get certified. They donate a great deal of time to help the allegedly mistreated children in our court system. They are vital to our children’s well being.

When the parents are financially able, the court may order them to pay the administrative costs for the Guardian Ad Litem program.

*****(This example is based on an actual closed case.)*****

The attorney Guardian Ad Litem appointed to consider the best interests of the children in a divorce believed that the parents did not properly educate the court on what might be in the children’s best interest. The GAL wanted the Final Judgment of Dissolution set aside so that a better order could be signed.

The Judge writing for the 4th District Court of Appeal ruled: The Guardian Ad Litem for the children had standing to file pleadings asking that the Final Judgment of Dissolution be set aside. But in this case the request will be denied because the facts do not support the request. The GAL may re-file if more evidence is acquired. (627 So2d 1203)


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