Gainesville Personal Injury, Divorce and Alimony Attorney

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01/10/2014
“Prospective clients may not obtain the same or similar results.”

Domestic Violence and the Work Place

Domestic violence has made a lot of headlines recently and by now most of us have seen the ads the NFL felt compelled to bombard us with. My office defends those accused of the criminal charge of domestic violence but we also represent victims seeking injunctions and proceeding with divorce or dissolution of marriage.

Domestic violence in the courthouse usually comes in three forms. Those are 1) a criminal case involving some form of battery, assault, or stalking, 2) an injunction for protection against domestic violence and 3) divorce or paternity actions seeking to establish timesharing or custody. Sometimes an alleged perpetrator can be facing all three different litigations at the same time. No one plans for three litigations or the time and money that it takes to defend or prosecute them. 

While a victim of domestic violence will only have two cases to which they are a party, even the alleged victim will have to spend some time in a criminal case. The time it takes to be a litigant can be a major distraction, inconvenience or otherwise negatively impact a person’s employment. Fortunately, there are laws that protect litigants from an employer reacting by firing or retaliating against a person for becoming a victim or a witness. Subpoenaed witnesses and victims of domestic violence are protected from employer retaliation by specific separate statutes.

Whether you or a loved one are an accused or victim of domestic battery or other violence, you will need help navigating the system. Click, call or fill out the form for assistance.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Parental Consequences in Refusing to Honor Time-Sharing Schedule

The Gainesville Child Custody Attorneys of the Law Office of Alba & Straile, PLLC remind parents that when a party is subject to an order of the court, and fails to adhere to such order, there are many consequences that can result. While some parents may believe that if a parent fails to pay child support, they should be entitled to deny access to or time-sharing with a child—this is a misconception. In the reverse, while a parent may believe that if they are denied their court-ordered time-sharing, they should not have to pay child support—this is also a misconception.

When the court has reached a determination, and reduced such decision to writing in a final order, parents generally cannot take it upon themselves to modify, alter, change, or deviate from such terms, without further order of court. Doing so can have a number of implications. Failure to pay child support has its own consequences, here we discuss the consequences of a parent’s failure to allow access to or time-sharing with a child. Pursuant to Fl. Stat. 61.13(4), when a parent, without proper cause, refuses to honor the other parent’s rights under the time-sharing schedule, as set forth in the parenting plan, the non-violating parent may be entitled to make-up time-sharing, as follows:

“[…] after calculating the amount of time-sharing improperly denied, award the parent denied time a sufficient amount of extra time-sharing to compensate for the time-sharing missed, and such time-sharing shall be ordered as expeditiously as possible in a manner consistent with the best interests of the child and scheduled in a manner that is convenient for the parent deprived of time-sharing. In ordering any makeup time-sharing, the court shall schedule such time-sharing in a manner that is consistent with the best interests of the child or children and that is convenient for the nonoffending parent and at the expense of the noncompliant parent.

In addition to make-up time-sharing, the court can order the parent that violated the time-sharing schedule to:

  • Pay reasonable court costs and attorney’s fees incurred by the nonoffending parent to enforce the time-sharing schedule;
  • Attend a parenting course approved by the judicial circuit;
  • Do community service if the order will not interfere with the welfare of the child;
  • Bear the financial burden of promoting frequent and continuing contact when that parent and child reside more than 60 miles apart from the other parent

Further, when a parent must seek court intervention due to the other parent’s violation of the time-sharing schedule, the court may, upon request of the nonoffending parent, modify the parenting plan. However, modifications under these circumstances still require the court to assess whether modifying the parenting plan would be in the best interests of the child.

It is important for parents to know that the potential consequences for noncompliance with custodial orders pertaining to time-sharing with the child, are not limited to those stated herein. Rather, the court may impose any other reasonable sanctions or remedies that the court deems appropriate, including holding a party in contempt.

On the other hand, there are situations where a parent may have been justified in violating the time-sharing schedule. Examples of proper cause for denying time-sharing may include circumstances where a parent or child has been abused or harmed, or where there is an imminent risk that the parent or child will be harmed if the other parent were allowed time-sharing pursuant to the schedule set forth in the parenting plan.

However, parents must be prepared to provide the court with evidence to support their assertion that proper cause existed. In other words, merely stating that time-sharing was denied because the parent or child was or may be harmed, without credible evidence, is generally insufficient to prove that the noncompliance was justified. Consequently, absent a parent’s ability to show proper cause, the court, in the very least will likely order make-up sharing, but may also impose one or more of the consequences referenced above.

In short, parties to a child custody proceeding should never undermine the authority of a court, unless they have good cause to do so, and can support this with evidence. Parents with hesitations over honoring the time-sharing schedule, can protect their rights by discussing their questions and concerns with an experienced family law attorney, prior to violating an order of the court. In cases where the time-sharing schedule has already been violated, an attorney can assist by discussing if there are any actions that an offending parent can take to limit potential consequences, as well as explaining legal rights and remedies available to a nonoffending parent.

The Benefits of a Bilingual Attorney

As managing partner of the Law Office of Alba & Straile, PLLC Gainesville Attorney Gilbert J. Alba has always embraced his Latino heritage, particularly due to his ability to serve the Spanish-speaking members of our community. However, an often overlooked consideration is the benefit that his bilingualism offers to English-speaking clients as well.  As you are reading this, you may be asking yourself—‘I speak English, why would I need a bilingual attorney?’  Well, actually, there are many advantages of selecting a lawyer that is fluent in more than one language.

Consider being injured in an accident, or being involved in a criminal matter, and then discovering that the only witness or a key witness needed to corroborate facts, is a person that does not speak English. In these situations, obtaining a favorable outcome may be dependent, at least in part, on your attorney’s ability to effectively address language barrier issues.

In example, from the viewpoint of a bilingual attorney, there should be immediate concern over the possibility of translation errors in any prior statements made by a witness, whether such statements were made to a party to the action, the police, an insurance company, or another person. This consideration is important, but one that may be overlooked by a legal professional that speaks only English. However, this is only one example of how a bilingual attorney can benefit their client. In practice, the value of a bilingualism, is found in the ability to identify, evaluate and overcome evidentiary issues at ALL stages of the claims process, particularly the litigation phase.

When a key factual witness does not speak English, the need for a bilingual attorney becomes increasingly vital the further along that a case progresses into the litigation phase. For example, where a non-English speaking witness will be providing testimony during deposition or trial, it is important to consider the manner in which bilingual lawyers are far more suited to both (1) ensure proper witness preparation prior to testimony; as well as (2) identify and address translation issues arising during testimony.

With regard to testimony preparation, fluency in both English, as well as a witness’s language, allows the ability to more effectively convey to a witness how to respond to inquiries presented, without the  need for the attorney to hire a translator. As referenced by the author of ‘5 Ways Attorneys Can Break Through Language Barriers,’ Attorney Alba comments on the essential nature of proper witness preparation:

 ‘During that process, attorneys should try to install in the witness the need to simplify his or her testimony…It’s really important to avoid niche terms, avoid colloquialisms, words that don’t translate as the speaker intended them to.’

A bilingual attorney is also better equipped to identify circumstances where a witness’s testimony on a specific topic or issue, may be better if presented through alternate means, such as the use of an expert witness.  Further, and in regard to language barrier and translation issues arising during testimony, it is important to keep in mind that for purposes of fairness to each party, the court will appoint the interpreter to be used in cases where a non-English speaking witness is providing testimony at trial. Having a lawyer that is bilingual will ensure that questions posed to a witness are correctly conveyed and that responses provided are properly translated.

Another benefit of bilingualism in terms of selecting a legal representative, is found in the capacity to assess language barrier issues in general, even in cases where a witness speaks a language outside of that attorney’s lingual fluency. Stated differently, an attorney that has handled prior cases involving witness language barriers from a bilingual viewpoint, is in a better position to identify potential issues, and address them in a way most suitable to a client’s needs. Like many other bilingual lawyers, Attorney Alba’s dual fluency, continues to contribute to his professional development as a respected member of the legal community.

Motion to Revoke Bond in Criminal Cases

In criminal cases a bond is an amount set by the court to allow a person to remain at liberty while their case is pending.There are several standard conditions of bond such as do not use illegal drugs and do not violate the law. The Court can set other conditions of pre-trial release such as curfew, day reporting and drug testing. 

As Adrian Peterson found out, a person released on bond who fails a required drug test, is subject to having their bond revoked. Mr. Peterson is set to have a hearing to determine whether his bond should be revoked. According to the article I read, Peterson admitted that he had “smoked a little weed” while out on bond.

A bond is a contract between the accused and the court.If a defendant has a bail bond agent then the bail bondsman becomes a party to the contract.In Florida, a Judge can revoke the bond at any time for a breach of the bond contract such as ingesting drugs or committing new offenses while out on bond.

A person released on bond or other pre-trial release conditions can seek to modify the bond.Normally, a hearing and the accused’s presence in court is required. If you or a loved one needs help with bond reductions, modifications or any criminal case please click, call or fill out the form at the upper right of the site to hire an criminal defense attorney today.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Top Eleven Things you didn’t know about Child Custody Cases

#1 – The Court can order electronic communication with child

The court can order electronic communication between a parent and child, including those via telephone, text message/chat, email, webcam, and video-conferencing, upon considering (1) the child’s best interests; (2) the availability, accessibility, and affordability of communication equipment/technology; (3) each parent’s history of substance abuse or domestic violence; and (4) any other material fact. If it is in the child’s best interest, a rebuttable presumption regarding telephone contact is created, which means that at a very minimum the court will order telephone communications, unless the presumption is rebutted. The court shall allocate expenses for such communications, and may set safeguards or guidelines for communications. Each parent shall furnish the other with access information necessary to facilitate communication. However, electronic communication shall not be used to supplement face-to-face contact with the child. See, Fla. Stat. §61.13003, see also §61.046(5).

#2 – The Court can order make-up time-sharing when a parent refuses to honor time-sharing

Neither parent may avoid their obligations and duties pursuant to valid court order. In other words if one parent fails to pay child support, the other parent must still honor the time-sharing schedule—and—if one parent refuses to honor time-sharing, the other must still pay support. Failure to honor time sharing can result in the court ordering make-up sharing to compensate the non-offending parent for time-sharing missed. In addition, the court may order the offending to bear the costs, attorney’s fees, and in cases where the parent and child reside more than 60 miles from the other parent, require that party pay expenses associated with exercising make-up timesharing. For more on this topic, see ‘Parental Consequences in Refusing to Honor Time-Sharing.’

#3 – The Court will order shared parental responsibility unless it would be detrimental to the child

As set forth in Florida Statute §61.13(2)(a)(c)(1), it is public policy that ‘each minor child has frequent and continuing contact with both parents…and to encourage that parents share the rights and responsibilities, and joys, of childrearing.’ Consequently, unless a parent presents competent, substantial, and credible evidence showing that time-sharing would be detrimental to the child, the court shall order that parental responsibility be shared by both parents. In some cases a rebuttablepresumption of unfitness, or detriment to the child, may exist (see #4), which if not rebutted precludes the court from awarding that parent physical or legal custody.

#4 – Certain criminal convictions create a rebuttable presumption of detriment

In child custody proceedings, §61.13(2)(a)(c)(2) provides that a rebuttable presumption arises in two scenarios:

(1) A Parent was convicted of a misdemeanor of 1st degree or higher involving Domestic (i.e. offenses resulting in physical injury or death of one family/household member by another family/household member)

-OR-

(2) Parental Incarceration meets criteria for Termination of Parental Rights (i.e. period of incarceration represents significant portion of child’s minority; incarcerated parent is career offender)

As a consequence of failing to rebut this presumption, after being advised by the court, the convicted parent may not be granted shared parental responsibility, including time-sharing with the child. However, the convicted parent is not relieved of any obligation to provide financial support. Further, the court shall consider evidence of domestic violence or child abuse as evidence of detriment, regardless of a conviction (or injunction for protection).

#5 – The Court may order child support even if time-sharing is equal

An order for equal time-sharing for a minor child does not preclude the court from entering an order for child support of the child, pursuant to Florida Statute §61.13(4)(d)(5). Depending on the circumstances of parties, and nature of the case, a parent may still be required to pay support even if time-sharing is equal, so long as such orders for support are equitable (i.e. considers financial factors of each parent), and are in accordance with child support guidelines, as set forth in §61.30. This provision serves as an ideal example of the discretionary authority permitted to judges in child-related proceedings in Florida.

#6 – The Court may order a parent to pay attorney’s fees, costs and other expenses

While the court must first consider the financial resources of a parent, there are circumstance in which the court may order a party to pay certain expenses, including:

  • Attorney’s fees,
  • Suit money, and
  • Other costs of maintaining/defending a family law/child-related proceeding

Grounds for such awards include, but are not limited to:

  • Where, a parent must commence and/or maintain an action, when, without good cause, the other parent fails to abide by order of court
  • Where an action for enforcement, modification, or other court relief is brought without justification

In addition, the court can order:

  • Temporary fees and costs when necessary to prosecute or defend an action
  • Awards to be paid directly to the attorney
  • Other special orders as necessary

#7 – A parent under military service order may designate other persons to exercise time-sharing

Florida Statute §61.13002(2) provides that, “[i]f a parent is activated, deployed, or temporarily assigned to military service on orders in excess of 90 days and the parent’s ability to comply with time-sharing is materially affected as a result, the parent may designate a person or persons to exercise time-sharing with the child on the parent’s behalf. Time-sharing may only be designated to the following persons:

  • Family members
  • Stepparents
  • Relatives of the child by marriage

The designation must be made in writing and provided to the other parent at least 10 working days before the court-ordered period of time-sharing begins. The other parent may object to the designations only on the grounds that the proposed designation is not in the best interests of the child. Parents who cannot agree on time-sharing delegation may request an expedited hearing on the matter.

#8 – The Court may order a Social Investigation

In any action where the parenting plan is at issue (i.e. in dispute), the court may order a social investigation and study concerning all pertinent details relating to the child and each parent, as set forth by Florida Statute §61.20. Court-ordered social investigations and studies may be conducted by:

  • Qualified Staff of the Court
  • Licensed Marriage and Family Therapist
  • Licensed Social Worker
  • Licensed Psychologist
  • Licensed Child Placing Agency
  • Licensed Mental Health Counselor

Parents to a proceeding where a social investigation is ordered by the court, shall bear the costs of the investigation and study, with the exception of persons deemed to be indigent. If a parent has been declared indigent and the court does not have qualified staff to perform the investigation, the court may request that the Department of Children and Families conduct the study.

#9 – The court may require the parents to complete a Parenting Course

Pursuant to §61.21(4) of Florida Statutes, ALL parties to a (1) dissolution of marriage (divorce); or (2) paternity action involving issues of parental responsibility, shall be required to complete the Parent Education and Family Stabilization Course. For good cause, a party may be excused from attending a parenting course, or from completing the course with the required time. Parents must participate in this course prior to final judgment, and failure to do so can result in a parent being:

  • Held in contempt
  • Denied shared parental responsibility or time-sharing
  • Sanctioned as the court deems appropriate

#10 – The Court May Appoint a Guardian ad Litem

If the court finds it is in the best interest of the child, the court may appoint a guardian ad litem. A guardian ad litem serves the interests of the child, as opposed to the interests of the parents. In other words, such person acts as next friend of the child, in an investigator or evaluator capacity, but not as attorney or advocate. The court may appoint a guardian ad litem in actions involving: (1) Dissolution of marriage; and/or (2) Creation, approval, modification of a parenting plan. Further, the court must appoint a guardian ad litem in actions involving child abuse, abandonment, or neglect, where such allegations have been verified by the court and determined to be well-founded. See, Fla. Stat. §61.401; see also §§61.401-61.404.

#11 – The Court may Impose Restrictions or Require a Party to Post Security or Bond

In proceedings involving the approval of parenting plans and time-sharing schedules, including modifications, the court may impose certain restrictions, limitations, and obligations, pursuant to Florida Statutes §61.45, if:

  • There is substantial competent evidence that there is a risk that one party may violate the court’s parenting plan, by: (1) removing a child from this state or county; or (2) concealing the whereabouts of a child; and/or
  • The parties stipulate (agree) to such restrictions/obligations; and/or
  • Another individual or entity having a right under state law motions the court (i.e. guardian ad litem; other person entitled to access to or time-sharing with child); and/or
  • The court finds evidence that establishes credible risk of removal

Potential restrictions, limitations and/or obligations that the court may impose include, but are not limited to:

  • Require written notarized permission of both parents or further order of the court to remove a child the state or country; and/or
  • Require a parent to surrender the passport of the child; and/or
  • Require that a party post bond or other security in an amount sufficient to serve as a financial deterrent to abduction.

Vehicular Homicide, Reckless Driving – Criminal Traffic cases with one difference

To prove a criminal case of vehicular homicide in Florida, the State must prove reckless driving plus one additional fact, the death of a person. Vehicular homicide, simply stated reckless driving plus a death caused by the reckless driving.

In the vehicular homicide cases handled by the firm, the fact that there was a death has never been contested. There has always been a dead person who died as a result of blunt force trauma incurred during the crash and usually the person died at the scene of the accident or shortly thereafter. Therefore, the litigation and defense centers on whether the person accused of vehicular homicide was driving recklessly. Early preservation of the scene is the key to a successful defense. 

In a recent case out of Miami, a tourist inexplicably stopped in the oncoming lane while trying to make a left-hand turn. The tourist’s vehicle was struck by another vehicle speeding at 29 miles over the limit. The rear seat passenger of the tourist car died. Initially, the tourist was charged with the non-criminal traffic infraction of violation of the right of way. Later, the Highway Patrol changed its mind and charged the speeding driver with vehicular homicide citing speeding without regard for the safety of others. Normally, there is a jingle amongst criminal defense attorneys that is that “speed alone will not support a conviction for vehicular homicide”.

Some may think that the Highway Patrol initially charging the tourist and not the speeder would be enough for a reasonable doubt such that the State of Florida would not prosecute. Unfortunately for the defendant in that case, he had to spend time in jail until the court agreed and set him free. The court refused to rule based on the “speed alone” jingle and it also warned that “[j]udgment by jingle is a perilous exercise, but if there must be a jingle in this area of the law, we would prefer, [s]peed alone is not enough, except when it is”. This could be an indication that the reckless / vehicular homicide area of law may be evolving to the detriment of the accused.

Being accused by the government is a scary thing. Do not go to court without a lawyer, a Defendant has rights that should be known and used. Please call, click or fill out the form to discuss strategy in your criminal or traffic case.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Luzardo v. State.

Traffic Ticket Capital Waldo, Florida Disbands its Police Department

Recently, the city of Waldo, in Alachua County, Florida disbanded its police department.  This means that every person who has received a citation from any Waldo city police officer should take their citation to court.  This is because I believe that many officers will not show in court. If the officer fails to appear, the traffic ticket will be dismissed.

While I cannot make any promises or guarantees, the Gainesville Sun reports that at least one officer, Officer Roberts, has said he will not come to court and an attorney reported another officer, Officer Logan will not come to court.  With Ken Smith and Mike Szabo already on suspension, that is four Waldo officers which is over half the department that will likely not show in court.   

It looks like the Waldo ticket machine is gone for good.  According to the article, Waldo traffic citations are down by two thirds.  Now the sheriff’s office will be patrolling the streets of Waldo with one deputy part of the time, instead of up to four officers all of the time.  The sheriff disbanded their traffic unit a few years ago.

If you or someone you know received a ticket in Waldo or anywhere else in Florida, then call, click or fill out the form to the top right to hire a lawyer today.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Read the article here