Choosing Guardians of your Minor Child: 6 Considerations

We can all agree that raising a child is not simple or easy in any way. Parenting comes with many tough decisions of varying degrees. One of the most challenging decisions as a parent is choosing guardians should care for and raise your minor child if you cannot.  

Often parents designate a caregiver in their Last Will and Testament, which asks that a judge appoint the nominee as a legal guardian of the child. When choosing an appropriate guardian, we suggest considering the following:

  1. Two Guardians or One – When choosing a guardian for your child, you are actually determining two guardians: the guardian of person and guardian of property.  Your nominee can be both the guardian of person and property or there can be two separate guardians. A guardian of the person is responsible for managing the day-to-day tasks a typical parent completes such as the  child’s medical, educational, and residential decisions;  your child will likely live with this person.  The guardian of the property is responsible for managing the child’s property and money.  For example, if your child receives inheritance from a probate or social security death benefits from your passing.  The guardian of property will pay or reimburse the guardian of person for expenses unique to your child such as orthodontics, tutoring, or necessary medical procedures.   It is often helpful to have the same person be both the guardian of person and property; however, some parents choose a person from each parent’s family to ensure the families keep working together and keep both families involved in the child’s life. 
  1. The less disruptive, the better- The first consideration in nominating a guardian, is determining what scenario and who is the least disruptive option for a guardian. Your death will be a massive disruption to your child so the greatest post-mortem gift to provide your child is to minimize the disruption and transition that occurs immediately after you are gone. When choosing a guardian, consider the following: (1) how far your child would need to relocate to live with the guardian, (2) what school they will attend, (3) do you want your child to remain in your home and will the guardian be willing to move (4) does your guardian have children whose lives will also be impacted should your guardian move.  Determining and writing down your child’s needs and your desires to provide the least disruptive option will weigh the considerations which are important to you and disqualify potential guardians who do not align with your goals and needs. 
  1. Age of the Child and Guardian- Different ages require different approaches to parenting.  For example, a teenager may be more independent and have a preference where they would want to live if something happens to you. Having your child join in the conversation may bring comfort to them, knowing that they have a say in the matter and will be taken care of by a trusted family member or friend.   A toddler may require a more hands-on guardian  who will likely be able to care for at least 10 to 15 more years. Will this potential guardian be able to keep up with the high demands of homework, carpools, and kids’ activities of younger children? As children grow, so do their social networks and obligations. Having a guardian who will keep pace with these demands is essential to think about. 
  1. Talk it out and write it down- The best practice when it comes to choosing a guardian for your minor child is to plan ahead and years down the road. Have those tough conversations now and have those conversations with your potential guardians.  Will your guardian be willing and able to step in?  How old will your guardians be in 5 years, 10 years, or even 15 years? Do the guardians understand the potential responsibility.  Do not make your efforts futile by choosing a guardian who does not want to or cannot take over. Once you have a guardian(s) selected and approved, write it down.  Once you have their approval, be sure to reduce it to writing. Contact your estate planning attorney to update or draft your Last Will and Testament to reflect your newly chosen guardian. 
  1. What resources are available-  There will be a cost associated with raising your child which may fall on your guardian of person if social security death benefits are insufficient to cover costs.  You can provide for any inheritance, including life insurance, retirement accounts, and real estate, be made available to cover any deficiency between benefits received and the expenses of your child.  You will want to consider if your child and the guardian remain in your residence, will there be resources available to continue paying for the mortgage or rent?  Should the house be paid in full first to free up resources for other items like groceries, clothes, and extracurricular activities? With a properly drafted estate plan, you can plan ahead with the resources you intend to have to maximize the funds available for your child and minimize any financial burden on your guardian of person. 
  1. Consider a backup Guardian- There is always the chance that the guardian cannot fulfill their obligations as your child’s guardian.  In this case, you should consider selecting a backup individual to step in if necessary. This guarantees that even if your initial plan falls apart, your child will still be taken care of by a responsible party of your choosing.  

Your death will undoubtedly create an emotional hardship on your child, particularly if your child is a minor.  Our time with our children is not promised but we can promise that we have properly planned for a “Plan B” if our “Plan A” is disrupted. At McCart & Tesmer, we are ready, willing, and able to help you make your “Plan B” to give you assurance and comfort knowing your child will always be well-cared for. 

Paternity in Florida

Having children and growing your family is not always what the cinema makes it out to be. It is not always romantic, and it certainly does not run as smoothly as it may be portrayed. While it can be incredible, it can also be messy – and let’s admit it, life can be messy. But while it is definitely a blessing to have children, and quite honestly the biggest adventure of your life, the act of having children can be… well, a little interesting. 

Regardless of your relationship status (complicated marriage, unmarried, or basically a relationship built on a crazy night out with the man you swiped right on the night before) there are several legal factors that go into what determines the paternity of your child and the legal rights of the father. Before we get down to the nitty-gritty, let’s touch on what paternity actually means. 

According to the Merriam-Webster dictionary, paternity is “the quality or state of being a father.” A paternity action is the legal proceeding that establishes the rights and obligations of the child’s father. These proceedings determine the legality of the father on a state level. This legal acknowledgment of paternity can potentially help you (the mother) petition for child support. 

That’s correct, ladies! This blog is all about who is legally recognized by the state of Florida as the father of your child. Now, we understand that you are probably thinking that the father of your child must be who you had relations (ahem… sex) with. Correct? Well that is not entirely true.

Determining The Father

Determining the paternity of the father can be broken down into two categories. The first, according to the state of Florida, is determined by if a woman gives birth and is married. This means that the legal father of a child is her husband. The second category of paternity is determined by going to court and petitioning to establish paternity with the state. But what happens when you are not married or had a child with someone other than your husband? Ooops! That got complicated…

Let’s start with the basics. In many states, including Florida, there are two types of paternity – legal and biological. That’s it, folks! That’s the tea. Let’s dive in.

Biological Father

For the most part, a biological father is pretty self-explanatory. The biological father is the man whose DNA is shared with the child. In the state of Florida, unless you are unmarried at the time of birth, there is no further action required. When married and giving birth, at least here in beautiful sun-kissed Florida, the biological father has shared rights with the mother, even if they divorce after giving birth.

This is where it gets cute. IF you are unmarried from the biological father at the time of birth, the state will NOT recognize them as a legal guardian of your child. Even though there is shared DNA, the State of Florida still requires you to petition for paternity. According to Florida statutes, the biological father can petition for paternity anytime between birth through the child’s 18th birthday. These petitions of paternity are typically determined through a genetics test.

With that, if you are unmarried and have an amicable relationship, the earlier you petition for paternity, the easier the process will be.    

Legal Father

In the state of Florida, the legal father of a child is recognized as the person who is legally responsible for the child. This person can be the biological father, an adoptive father, or even a close friend. Realistically, it can be anyone that the courts deem as the “legal” father.

This specific father has the same rights as the mother regarding custody, how the child is raised, time-sharing, and much more. In the case of divorce, regardless of whether the legal father is biological or not, you should still prepare for a custody battle because the state of Florida will see them as a legal party.

In either category, you will need to take the appropriate steps to establish the legality of your specific paternity case. People often assume that the name listed on the birth certificate at the time of birth is the legal paternal father. Unfortunately, that is not the case. During a petition for paternity, the courts will and can overturn the birth certificate. Yikes! 

Rights of the Mother

Just like any other family law case, both parties involved have a path to maneuver. If you are a single mother or your child was born out of wedlock, you automatically have full rights and custody of your child. The state of Florida tends to lean on the side of the mother, and in any court case, this gives you the upper hand. However, if you are not capable of taking care of the child on your own the Florida Department of Revenue can issue a court order to petition for paternity – especially if a mother requests government assistance.

On the flip side, if the father denies paternity, won’t sign the appropriate affidavit, or ceases communication with the mother, the mother still has options. And we like options… The mother in turn may file a court action to establish paternity. If the father does not comply, he may risk being held in contempt of court. This can lead to high fines and potential criminal charges. Once the court adjudicates the father’s paternity, the mother is entitled to retroactive child support in Florida.

Why is Establishing Paternity Important?

Establishing paternity helps you and your child navigate the intricacies of life a little easier. From child support to medical history, having an understanding of who the legal father is can help all parties. Here’s how:

  1. Financial – If you are a single mom, it can be hard to plan for your child financially. With a legal settlement with the legal father, you will be able to collect child support.
  2. Inheritance – If the legal father passes away, your child will have the opportunity to collect their benefits like social security, disability, Veteran’s benefits, and life insurance. 
  3. Medical – Establishing paternity of the biological father can help your child understand their medical history from both sides.
  4. Insurance – If the legal father can pay for health insurance, the child would be able to receive coverage through either parent. 
  5. Identity – Representation and self-identity are essential. Allowing your child to know their legal father helps them have a better understanding of themself.
  6. Relationships – No matter your feelings towards the father, your child has the right to build and establish a healthy relationship with the other parent. 

That was a lot, and we barely touched the surface. Navigating through paternity cases can be as straightforward or as complicated as either party makes it. There may be further complications if other variables are involved, like sperm donors or an attempt to disestablish their paternity. Don’t you worry, we’ll cover those situations a different day!

Hiring competent and trustworthy lawyers that possess a little flare and a little sass is critical to any family law case. For over fourteen years, Kristi McCart and Laurel Tesmer have served the Riverview, FL, and surrounding Tampa Bay areas in Marital and Family Law. If you are seeking representation and want honest answers as a team who will fight for you, you’ve come to the right place. 

Give McCart & Tesmer a call today at (813) 498-2757 or click here to drop a line and schedule your free legal consultation today.

Now go forth and be wild… but not too wild because you know, paternity! 

‘Tis The Season – 7 Tips To Plan For Holiday Timesharing!

Listen, we know. You probably want to talk about green bean casserole, pumpkins, and sugar plums. Maybe even the big guy in the red coat—we certainly do! But before we get knee-deep in decor and side dishes, it is time to get serious about planning for timesharing for the holiday season. Who gets Turkey Day? Is Santa still real this year? Who will be making cookies on Christmas Eve? All of the questions and more need to be discussed now. If you wait too long, there may be a brawl over which grandma gets to cook for the kids on Thanksgiving. 

At McCart and Tesmer, we have a great deal of experience in Family Law. We deeply understand the difficulties of navigating the holidays with someone with whom you have divorced or separated. Trust us; it can be done! The amount of friction during the process has everything to do with considering and planning into the holiday seasons ahead of time.  

  1. Review Your Parenting Agreement. Assuming you already have a Parenting Plan in place, review your Parenting Plan by the beginning of November. If you have not sat down to review your Parenting Plan since the beginning of school, that is okay, but it is time to take another look. Consider upcoming travel (especially out-of-state and international) and the dates of school breaks that are coming up. Now is the perfect time for both parties to make adjustments for future holiday timesharing (maybe with the help of some highly qualified, seasoned lawyers like us). This way you can avoid scheduling conflicts for the upcoming holidays. It is important to prepare your child in the timesharing plan as early as possible. It will give them a great deal of ease to know the plan ahead of time.  If you do not yet have a Parenting Plan in place, click here to get a free template or contact our office for a consultation.
  1. Consider Sharing The Holidays With Your Ex. If you do not have a Parenting Plan, many parents alternate the holidays: one parent has Thanksgiving and the other parent has Christmas Eve and morning. Obviously, this is not a one size fits all recommendation. Some situations or circumstances could make sharing a holiday impossible for some co-parents. If alternating holidays does not work, note these considerations when finding a schedule that works. First, create a schedule that is the most harmonious for your child(ren). Do not argue over transfer times (the difference of 5 or 20 minutes is not worth the fight in the grand scheme of things). Communicate respectfully and clearly because (1) the holiday will be less stressful and more special for your child and (2) you never know if your communication will used in court in the future.
  1. Centralize Communication. Did you know there are phone applications that were designed with timesharing co-parents in mind? We talked about OurFamilyWizard and Talking Parents in a past blog, which are still two of our favorite apps for co-parents. We thought it would be nice to share a new app, WeParent. This App provides the first 14 days free, secure messaging, calendar sync, and collaborative notes accessible for both parents. Users can add as many family members as they would like, including children above the age of 13, and messages are archivable. Apps like these can help keep communication streamlined and minimize frustration which makes it a lot easier to focus on the well-being of the children and the fun of the holidays!
  2. Coordinate Presents and Spending Expectations. Once you receive your kid’s holiday wish list, divvy it up! You can go 50/50 on costs or let one person get a high-cost item and let the other parent get the smaller presents. This is not the time to out-Christmas your ex by going over the top with presents. Remember that no matter the amount you spend or the number of gifts you provide, the holidays are tough for kids with two households. What is most important is that your children know you love them with or without enough ribbons and bows to cocoon the coast of Tampa Bay. 
  1. Child Support. A talk about spending expectations for co-parents would not be complete without mentioning child support. Child support should remain the exact same for the holiday season, but there are some important considerations to make. Bank closures or employers taking leave for the holidays may cause a delay in payments. If you are the child support paying parents, stay on top of your pay schedule and amount.
  2. Take Care of Yourself! The holidays can be hard on parents too! Getting through the holidays after a break-up or divorce can be made easier with a survival guide, but all in all, you have to take care of yourself in order to take care of your family. Whether or not you are able to celebrate important holidays and traditions with your children, self-care is vital for parents this time of year and always. Between decorating, spending, cooking, and entertaining—make sure you set some time aside for yourself. We suggest that you take a moment during the holiday season to schedule at least one day to do an activity that makes YOU happy. Maybe it is a mani-pedi, or a brunch date with friends. Whatever you choose, this time is solely for you. When you refill your proverbial cup, you replenish your energy to pour back into your loved ones. 
  1. Plan Substitute Holidays. Oftentimes holidays focus more on traditions and time with family than a date on the calendar. If you’re open to it, pick a new day on the calendar! Your children will likely barely notice the calendar but will remember the time spent together as a family.  Perhaps create a new, but equally fun, tradition. Who says you should not have two Christmas celebrations?  If you’re the parent that does not get Christmas Day this year due to timesharing, perhaps an “Elves’ Eve” or “Rudolph’s Day” is your day to celebrate!

The first holiday season after a separation or divorce can be scary and full of unknowns. Even if your holiday celebrations look a little different this year, we promise that you can get through this. The important thing is to keep it fun and loving for the kids while handling the logistics and planning behind the scenes.

The lawyers at McCart and Tesmer can help you sort out many of the complexities of your family’s restructuring, from timesharing and decision making to child support and everything in between. We can help you find ways to ease the discomfort by providing the knowledge and tools necessary for your journey. Proactive co-parenting not only works but can make all the difference in the world by avoiding any unnecessary pitfalls that may come. For further questions regarding parenting plans, holiday timesharing, exchanges, please contact us at McCart & Tesmer, P.A.

Not Tying The Knot? 6 Tips to Protect Your Property As An Unmarried Couple

unmarried couple
Florida isn’t the marrying kind, apparently. The United States is hitting record lows for marriage rates, and Florida is even lower than the national average with less than 16 people per 1,000 people getting married each year. If you have no upcoming plans to get married—you are the majority! Being an unmarried couple has its benefits, such as maintaining your monthly alimony from a prior divorce or sustaining financial aid awarded to your college-aged student. Surely there are additional reasons people are not marrying their significant other but it is hard to pinpoint exactly why fewer and fewer Floridians are tying the knot. 

We believe the COVID-19 pandemic is in part to blame. It is unsafe to have large gatherings and venues have closed and re-opened only to close again. There have also been significant shifts in economic and cultural realities across the board. Younger generations are pulling away from traditional values, and the reality is that buying a home is not as easy as it was for the Boomers and Gen X. People are still falling in love and starting families—really doing all of the things that married couples do– but without the marriage license. 

So, if you are in a devoted partnership where the two of you live together and share property, what does a split look like? We mean, legally speaking. Who gets the dog? Who keeps the car? What about my Funko Pop collection? (We are willing to part with the ‘08 Honda Civic if it means we can keep the baby Groot funko.) What happens if one of you is incapacitated or passes away? Because the State of Florida does not recognize Common Marriage Law, these are valid questions that folks without legal experience in this arena may not have answers to. We have written about the rights of unmarried couples before, and due to the popularity of this topic and our experience in Family Law, we will focus specifically on property rights for unmarried couples. 

In the event of separation…

Cohabitating couples should be aware of legal rights available to them and their significant others. Unlike married couples who have an entire Florida Statute dedicated to guiding how the married couple should divide their property, unmarried couples are left with many more questions than answers.

For homeownership, the deed dictates the division.  Whoever owns the property on the deed receives the property after the breakup. If the parties purchased the property together, they likely own the property as Joint Tenants or Tenants in Common. 

If the partners own the property as joint tenants, each partner owns an equal share of the property; this will be specifically acknowledged in the event of a break-up, each partner and joint tenant will take one-half ownership (and equity or liability) of the property. In the event one of the Joint Tenants passes away, the surviving Partner owns the property 100%.  The deceased partner has no ownership for inheritance. 

Conversely, Tenants-In-Common owners own the property in proportion to a specific amount, which is typically the proportion each party financially contributes to the purchase or upkeep of the property. This is also the default property ownership in Florida meaning unless the property deed specifically states “Joint Tenants”, the partners will own the property as Tenants-In-Common. For example, if Partner A contributes 30% toward the down payment, maintenance, and mortgage and Partner B pays for 70% of the same bills, 

“Partner A shall have 30% interest and Partner B shall have 70% interest in said property”. If the parties remain together and one partner dies, the survivor is only entitled to their share of the property.  The deceased partner’s share will pass to the deceased partner’s estate to be probated. If one partner desires to dissolve the relationship and co-ownership, they can always sell or transfer ownership of the property to someone else, even a stranger!

For everything outside of property—debts, assets, banking accounts—these are assumed to be each individual’s responsibility. This differs from marriage, where things are considered jointly owned once divorce proceedings begin. So, watch how much swiping your credit cards as compared to your partner. They will pay none of the debt they may help you incur in the event of separation. If you drive their car, don’t assume it’ll become yours even if you paid insurance and maintenance costs for years. 

In Florida, the law says you’re lucky you’re not getting fined for being an unmarried couple living together! You are really on your own when it comes to dividing property and it can be taken to court, where things aren’t always pretty. As far as legal work goes, the cost for writing up a Tenant Agreement is nothing compared to divorce or going to court. 

In the event of incapacitation or death… 

Unmarried couples may be with each other ‘till death do them part. Last Will and Testament, beneficiary designations, and joint ownership are all great fail-safes for unmarried couples. In the event that your partner needs to make decisions about medical care, finances, or child care you will need additional documents in place. 

Last Will and Testament – Without a will, the things you leave behind will go to your next of kin, which may be children (in any), parents, siblings but not your partner. Having a Last Will and Testament will ensure your partner inherits from you.

Living trust –  A living trust is a similar option to a last will and testament and great for people who want their surviving partner to avoid the hassle and costs of probate. The trust allows the Trust-maker to maintain control of the trust assets (such as property, money, personal property) after the Trust-maker passes.  This may be particularly important if the Trust-maker wants to ensure their partner is cared for during their life but the remaining assets are passed to the Trust-maker’s family, who is not the family of the surviving partner.

Beneficiary Designations – You can ensure your partner has access to funds and property by naming the partner as a beneficiary on any account that permits these designations.  Failure to do so would result in your estate or next of kin receiving these funds and not your partner.  

Joint Ownership of Accounts – By naming your partner as a joint owner of an account, the survivor on the account would have 100% ownership.  This means that if you and your partner share a checking account and you pass away, your partner would keep this property solely.  This account would not become part of your estate or be inherited by anyone else.  But beware!  Co-owning assets opens you up to liability should one of you be sued.  The account could be seized to pay you or your partner’s debts.  Co-ownership also means that either partner can liquidate and empty the account without the other’s permission should there be a break up of the relationship.

Power of Attorney – Your partner does not have the authority to make decisions on your behalf. A durable power of attorney allows your partner to make business, legal, and financial decisions for you. This could include paying bills or filing tax returns in the event that you are unable to.  

Health Care Surrogate – A health care surrogate allows your partner to make healthcare decisions for you that you would have made under the same circumstances.  Without this document, your partner who likely has more intimate knowledge of you and your wishes, cannot make health care decisions for you. In the event of the worst-case scenario of either a break-up or the death of a partner, you will not want to be encumbered by legal technicalities and roadblocks. Your attention will likely be navigating the emotional turmoil that comes with this life shift. Instead, plan ahead. That is something we at McCart and Tesmer can handle for you.

Get in touch with us today to ensure that even if you are an unmarried couple, you and your property are still protected.

Help! My Child is Turning 18: Important Legal Docs for Young Adults

Young adult
Turning 18 and becoming a young adult is one of the most significant milestones in our lives, at least legally. This coming of age moment opens new opportunities to vote, enlist in the military, and even serve on a jury. But like Uncle Ben said, “With great power comes great responsibility.” 

Gone are the days where you were able to make all legal, financial, and health care decisions for your child as their guardian. Now your young adult child has the sole power and discretion to make these decisions or delegate them to whomever they deem appropriate. It’s okay; we just wept a little with you. 

As attorneys (and moms!), when we think of eighteenth birthdays, we think of all the necessary legal documentation your child needs. We think of the automatic right to privacy and autonomy now bestowed upon your new 18-year-old. We think of the pediatrician who now looks to your child for answers rather than you. Or the school or college that will not allow you access to your child’s records without your child’s consent. Let that sink in. By virtue of a single birthday, this young adult is now viewed as holding the answers to all the questions asked. If your now adult child wants or needs your help, you cannot help without proper documents in place: Power of Attorney and Health Care Surrogate, or Guardianship/Guardian Advocacy.

Before you continue reading, if your child is developmentally disabled, please read the blog we wrote for special needs children turning 18. There are some pretty big differences between the legal requirements. Now, without further ado, Power of Attorney!

Power of Attorney and Health Care Surrogate

The Power of Attorney allows your child to give decision-making authority to you, a grandparent, or a trusted advisor over any business, legal, and financial transactions. It is important to note that your child will continue to make all these decisions themself, and if their decision is opposite to what you would personally decide, your child’s decision reigns supreme. However, if your child is unable or does not want to make the decision, you can act on their behalf. 

For example, your child gets the opportunity to study abroad. With the power of attorney, you can manage their monthly bills or request travel documents they left sitting on the desk back home. You could purchase real estate, make investments, or renew their vehicle registration. The possibilities are numerous; but more importantly, the Power of Attorney provides security should something tragic occur and your child become temporarily or permanently incapacitated. Rather than rushing to the courts to obtain guardianship to make decisions for your child, you can immediately set in and continue making their decisions with no lapse in time. The last thing you want to do is have your child’s credit destroyed while they are healing or recovering. 

In addition to a Power of Attorney, your child will need a Health Care Surrogate and HIPPA Release which is designed to allow others to make health care decisions if your child is incapacitated with injury or grave illness and allows that person access to privileged health information. Should your child suddenly be injured or ill to the extent they cannot consent to health care treatment, the health care provider will go to the next of kin (who they can find) to make decisions. A Health Care Surrogate designates who your child wants to be the next in line to make decisions and in what order. This can be particularly important, albeit uncomfortable if your child’s parents are divorced, separated, or have a difficult time making co-parenting decisions. It’s not something anyone likes to think about, but it happens. With a HIPPA Release, the named surrogate could be an informed decision-maker who may share details about the family medical history. 

Power of Attorney and Guardian Advocate do not always cross state lines. Making sure you have what you need to protect your child can be tricky if you’re not an expert. At McCart and Tesmer, we deal heavily in Family Law as well as Guardianship. If you have any questions about Power of Attorney, Guardian Advocate, or any other documents you’ve heard can help your adult child, please give us a call at (813) 498-2757 to schedule your legal consultation today. Our law firm is well versed in all types of family law, and if you need advice on legal documents for developmentally disabled adult children turning 18, please refer to this blog for tips and tricks necessary for you and your child.

Help! My Child with Developmental Disabilities is Turning 18: Essential Legal Docs for Young Adults

Developmental Disabilities

As a parent of a child with developmental disabilities, there is a foundational understanding we have of that eighteenth birthday being a very scary one.

For 17 years, you lived in a world where you make all the decisions for your child, and your child may not be ready or able to make independent decisions now. Horror stories run rampant in parent circles that gather around for their developmentally disabled children. Too many of these horror stories are about how once their child turns 18 they lose all decision-making authority. Parents are no longer privileged to health information or are unable to enroll their children in day programs, or group housing. 

It can be a terrible transition from solely responsible to uninvolved. At McCart & Tesmer, we understand those feelings, and our practice helps parents plan and prepare for that next chapter of parenting adult children with developmental disabilities. If your child lacks the ability to know, understand, and appreciate a particular legal document, your child can not consent to signing it. So, if your child is developmentally disabled, it’s likely they are not a candidate for a Power of Attorney or Health Care Surrogate. The document would not be valid. Instead, your child may be a candidate for Guardianship or Guardian Advocacy. Make sure you come to experts and avoid making the wrong judgment call. 


Guardianship is the formal legal process for removing or delegating individual rights from one person and giving them to another, named the Guardian by law. Because of the nature of many developmental disabilities, a Guardian will usually ask a court to relinquish decision-making authority from the developmentally disabled person and give them to the Guardian, usually a family member or loved one. 

This is different from a POA or a Health Care Surrogate, which does include the other party and protects their decision-making ability unless they are incapacitated or chose not to be involved in certain choices. Suppose the disabled adult is determined to be incapacitated by the court. In that case, the Guardian would make business, legal, financial, social, residential, medical, and educational decisions for the developmentally disabled person. 

Guardian Advocacy

Unlike Guardianship, Guardian Advocacy is designed for families with a developmentally disabled child over eighteen years of age who was diagnosed with their disability before turning eighteen. Guardian Advocacy is only available to individuals with an intellectual disability, cerebral palsy, autism, Down syndrome, Phelan-McDermid syndrome, Spina Bifida, or Prader-Willi syndrome, according to Florida Statute 393.063. The condition must be severe enough that the court declares this person does not have and likely will not have the ability to make decisions about their person, property, or estate.

A letter from the child’s doctors outlining the conditions and prognosis is sufficient evidence for  Guardianship Advocacy. Many parents are thrilled to know the option of Guardian Advocacy is available without having their child labeled “incapacitated”. The ability to have some or total decision-making authority without labeling their child incapacitated is one reason many parents and families are choosing to relocate to Florida. We have noticed an influx of parents taking advantage of Florida Guardian Advocacy laws because Florida is one of only a few states which currently has this summary guardianship option available. It’s honestly very progressive of us, and something that we hope will become available to more states in the future. 

We have years of experience with the needs of families with developmental disabled loved ones. Please visit our website for other great resources for Special Needs Children if you’re interested in learning more. Our law firm at McCart and Tesmer is well versed in all types of family law, and if you don’t need advice on special needs legal documents, we have this blog for non-special needs adult children. 

6 Effective Proactive Co-Parenting Tools for Back To School

The summer goes by so fast, and before you know it, it’s time for the kids to head back to school. This means it’s time to think about things like back-to-school shopping, choosing extracurricular activities, figuring out transportation, considering holidays to come, to name a few. For families where divorce is involved, proactive co-parenting is a must. At McCart and Tesmer, we have a great deal of experience in Family Law and have seen some clever tactics to provide a much smoother school year for both parents and the children. 

Here are the things we suggest for the most successful back-to-school proactive co-parenting.

  1. Review Your Parenting Agreement.  Assuming you already have a parenting agreement in place, reviewing it before the school year begins allows parents to look ahead and prepare for things like upcoming travel and school holidays. A fresh set of eyes on your agreement can also reveal any missing contacts for childcare or emergencies. This review is also a great time to make any adjustments to the Agreement if necessary (with the help of your lawyer(s)) to avoid scheduling conflicts in the coming school year. It is also a great time to decide on transportation for extracurricular activities and the pickup and drop-off duties to come. If you don’t yet have a Parenting Plan in place, click here to get a free template.
  2. Let Technology Help! Consider using an app designed to help divorced parents communicate better. OurFamilyWizard is one of our favorites, and it was created by a divorced couple who understood there was a need for a tool to help co-parent as smoothly as possible. The application allows each parent to have their account, and then they can add in other users such as therapists, lawyers, and extended family. Helpful apps for divorced parents usually feature a shared calendar. This comes in handy for both parents to see what is upcoming and communicate directly through the app to avoid confusion.
  3. Create One Email Per Child. This one might sound strange, but it works! Proactively create a specific email for your child to give to the school for all communication. Both parents have access to this email address for full transparency. A single email streamlines communication between parents and the school regarding essential things like announcements, report cards, parent-teacher conferences, events, etc. 
  4. Discuss School Supplies.  In Florida, things directly relating to a child’s education (book, uniforms, pencils, etc.) should be covered by child support. Agreeing about needs, budget, and shopping for and paying for school supplies BEFORE school starts can help avoid unnecessary conflict in an already stressful time. For the sake of record-keeping, it is recommended that the parent paying for the supplies buys the specific supplies rather than sending money to the other parent. 
  5. When Possible, Attend Parent-Teacher Conferences Together. Being a united front as co-parents is especially important for the education of the child or children. Attending meetings like this together makes it easier for the teachers by showing that both parents are committed to supporting the child’s education. Of course, there are cases where having parent-teacher conferences together is not possible. In those cases, it is essential to utilize most if not all of the tips here to ensure communication is evident between the teacher and parents.
  6. When Conflicts Arise, And They Will, Put The Child’s Interest First. Every divorce has its share of conflict, or both parties wouldn’t be divorced. That said, it is crucial for both parents to always come back to the common goal: your child’s health and happiness. The decisions you make should have the child’s interest at the forefront, and any conflict between the parents should be secondary. Be aware of how you speak to the other parent in front of the child; disagreements can wait until they aren’t around. Remember, you are shaping our future through your children, so be sure to give them the best chance by working WITH your co-parent.

Hopefully, this list of tips and tricks will help you as you enter another school year. Even though the marriage didn’t work out, it is possible to provide an incredible school experience for your kiddo. The lawyers at McCart and Tesmer can help you sort out many of the complexities of your divorce, from custody to parenting plans and everything in between. They can help you find ways to ease the discomfort of the divorce by providing the knowledge and tools necessary for the co-parenting journey. Proactive co-parenting not only works, but it can make all the difference in the world by avoiding the unnecessary and planning for the future together. 

Age Difference and Second Marriages: Tips for Round 2!

Sometimes the first marriage just doesn’t work out. That said, so many folks are finding love and companionship for the second time around! The number of second marriages in the US is higher than ever before. Most of these happy second-timers have a significant age difference between them which comes with many unseen obstacles that can be planned for and possibly avoided altogether. For those of you who have had the big wedding day #2 and are older or younger than your spouse, we’ve put together a few considerations and tips to make your second marriage the most successful. 

After the honeymoon, it’s a great idea to have a few important items front-of-mind for the future of your second marriage. These considerations aren’t given to rain on your love parade and say that it won’t work out. Quite the opposite, in fact. The family law professionals at McCart & Tesmer want you and your new partner to have all of the facts in place and the pro’s and con’s weighed so that you can be proactive and successful the second time around. 

  • Estate Planning should be a high priority in your considerations with your new partner. Did you know there is a Legal Right to Inherit? Absent a prenuptial agreement or postnuptial agreement, if you never update your estate plan, the new spouse is entitled to  the“pretermitted share” equal to a value ranging from 50% of the probate estate to the entire probate estate depending on the circumstances.  Your new spouse may also be entitled to  the “elective share” equal to 30% of the aggregate estate. If you plan ahead with your estate, you can be sure that everything lands where it should if things do play out well for the marriage or one spouse dies.
  • Because of an age difference in the coupling there is a high likelihood of one spouse outliving the other spouse. 
    • It is vital that the both spouses decide how to handle providing care for each other when necessary (day-to-day, long term care, hospice).
    • It’s a good idea to set up a Trust – 
      • A trust allows for intentional distributions to be set for a surviving spouse.
      • If there is a child from a different relationship, a trust can be set up to reserve money for that child as well.
      • A trust can also act as a safeguard to prevent the surviving spouse from depleting all assets.
      • If a surviving spouse remarries, it could prevent any family wealth from passing to the surviving spouse’s new spouse.
  • When one spouse passes away, the surviving spouse can be left with a mess to clean up. That said, if properly planned for, this unfortunate event doesn’t have to be messy. 
    • Decide on beneficiary designations ahead of time.
      • Depending on the terms of a prenuptial agreement or postnuptial agreement, there could be money left to the surviving spouse.
      • As part of an estate plan, the deceased spouse could leave specific amounts of money to children outside of the will or trust (this would likely still be subject to the “elective share”).
      • Planning ahead can allow money left to be used for the younger spouse’s continued needs

What if the second marriage doesn’t work out? It’s important to think ahead in order to avoid a lengthy dissolution of the marriage. First, both parties should have their own counsel before moving forward with any legal matters. Once that is done, both parties should consider and agree upon whether a Prenuptial or Postnuptial agreement would work best for the couple if things go south. Both options will help avoid a lengthy dissolution of the marriage but there are pros and cons to each.

  •  A Prenuptial Agreement is an agreement between a couple signed before they get married which sets forth the division of their assets in the event of divorce or death.”
    • This option is one that allows all parties to make an agreement before they are legally bound. 
    • Both parties must disclose all assets 
    • Gives the couple an opportunity to address alimony and whether or not it will be waived before the relationship fails.
    • A Prenuptial Agreement, in effect, allows the couple to get ahead of emotions that will surely arrive if the relationship fails.
    • This option can feel transactional but it is necessary to protect your assets especially when a second marriage is involved..
  • A Postnuptial Agreement is an agreement between couples after they are married so they can each protect themselves in the event of a divorce. This agreement is a legal contract that outlines how assets will be divided and what each individual in the marriage is entitled to should they divorce. It may also include other provisions that the couple agrees on.”
    • A Postnuptial Agreement is like a Prenuptial Agreement, but instead of before, it’s made after marriage has taken place. 
    • A Postnuptial Agreement requires additional “consideration” which is the exchange of something of value, such as property, money, services or a promise.
    • Alimony can still be considered with this option but this might be tougher to decide on once legally married.
    • As a part of the agreement it is possible to waive entitlement to each other’s estates and inheritance.
    • Oftentimes a Postnuptial Agreement will include the agreement to provide life insurance if the greater earning spouse dies.

Having all of the facts out in the open makes it much easier for your and your new spouse to make the right decisions for your relationship from the get go. It can be tough to think about what happens if things don’t go as planned. But if you have done the work of planning ahead, those things that seemed like roadblocks before, become things that have already been dealt with and decided. Still have questions regarding your second marriage? With nearly 20 years of experience, McCart & Tesmer specialize in both Family Law and Estate Planning. Click here to drop us a line and/or schedule your Free Consultation today!

How is Child Support Calculated?

The amount of child support a parent may pay is one of the first questions typically asked during a family law consult for a divorce or paternity action. Unfortunately, the answer is “it depends”.

The Florida Legislature has provided guidelines from the amount of child support which should be paid for the support of a child based solely on the parent’s combined monthly net income. However, the calculation does not stop there. The child’s health insurance, uncovered medical cost, and day care expenses are all factored into the calculation as well as the parents’ timesharing schedule. The money a parent pays for the foregoing expenses and the more time a parent has with the child the less child support that parent will have to pay.

The Court will look at financial documents such as pay stubs, bank statements and tax returns to determine each parent’s relative income. Each parent will also be required to file a financial affidavit which provides a monthly snapshot of their income and expenses. All these documents and affidavits must reconcile.

Determining an accurate child support calculate is extremely important and should be reviewed by an attorney. The attorneys at McCart & Tesmer, P.A. are ready to assist in your family matter. For a free consultation please call (813) 498-2757 or email the firm at