Family Law

Will the Indian Child Welfare Act Survive In Its Current Form

Has the Indian Child Welfare Act (ICWA) made it harder to remove Native American children from abusive homes?  That exact issue is now pending before the United States Supreme Court when next month the Court will hear the case of Haaland v. Brackeen, in which the Supreme Court will consider whether the ICWA discriminates on the basis of race and whether the law exceeds Congress’s powers by commandeering state courts and agencies to carry out a federal child-placement program. 

In this important case, the states of TexasLouisiana, and Indiana, as well as individual plaintiffs, are seeking to declare the ICWA unconstitutional. This matter was originally taken up in a Texas District Court on an adoption petition filed by the Brackeen family after their initial efforts to adopt a Native American child were challenged by the Navajo Tribe.  As a matter of utmost importance, the Cherokee NationOneida NationQuinault Indian Nation, and Morongo Band of Mission Indians all intervened in the case in an effort to preserve the ICWA in its current form. 

In the first strike against the ICWA, earlier this year the U.S. District Court in Texas declared that the ICWA was unconstitutional, and later, before a whole panel of judges, the Fifth Circuit Court of Appeals held parts of the law, including those that set federal standards for lower and state courts, were constitutional, while finding that the parts of the law that required state agencies to perform certain acts were unconstitutional as a violation of the Tenth Amendment, which details that those powers not delegated to the federal government by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.  

To understand where we are presently, it’s important to know a little about the history of the ICWA.  First enacted in 1978, Congress passed the Indian Child Welfare Act with the underlying, noble purpose of trying to keep Native American families intact.  Congress felt forced to intervene as a response to thousands of Native American children being removed from their families and placed into non-Native American homes, displacing Native American children from their cultural and historical communities and customs.  The Act’s stated goal remains to strengthen and safeguard tribal nations for future generations by ensuring Native American children remain in indigenous homes for the stabilization and continuation of the Native American family.  But, as the current lawsuit questions, at what cost to Native-American children?

Native American

The States leading this lawsuit argue that the ICWA is responsible for a separate and unequal child welfare system that applies different legal standards for Native American children than it does for non-Native American children. For example, in most states, including in Florida, when non-Native American children are permanently separated from abusive parents using a “termination of parental rights” (TPR) proceeding, the State has to find “clear and convincing evidence” to proceed and terminate parental rights.  However, under the ICWA, when there are allegations that Native American children have been abused, abandoned, or neglected, the ICWA dictates that the State must prove its case beyond a reasonable doubt and that it must do so with expert witness testimony.  In practice, this represents a substantially higher legal standard that makes it more burdensome to prove such abuse than it does for cases involving abused non-Native American children, thus making it that much more difficult to remove Native American children from abusive homes.  As many have noted, the ICWA’s standards of proof present an even higher legal standard those that apply in criminal cases, and may represent one of the highest legal standards and burden of proofs in American jurisprudence.    

In addition to the higher legal standards used for Native-American children under the ICWA, the States are also arguing that the Federal Government is without constitutional authority to implement a law such as the ICWA, as those specific powers were not granted to the Federal Government in the U.S. Constitution. It will be interesting to follow this case as the U.S. Supreme Court hears oral arguments in less than one month.  With the Court taking a fresh look at these provisions, I would like to think that the Court will consider the arguments presented in an effort to ensure that Native-American children are not put at even more risk by a law whose intended purpose was to protect them and their heritage.  

Attorney Russell J. Frank is a Board Certified Family and Marital Law Attorney at CPLS. P.A. focuses his practice areas on family and marital law and dependency law.  Contact Attorney Frank today to discuss any family or marital legal issues you may be experiencing at

Russell Frank

Russell Frank

Family Law Attorney

Pandemic and Divorce

Emotions and Value Creation.

The Magna Carta created jury trials, grand juries, and abolished “trial by ordeal” in 1215.  A century later, the Black Plague swept all of Europe. Thus “A Jury of Our Peers” has been the hallmark of justice for more than 4 centuries before the founding of these United States. Today, a new worldwide pandemic is challenging our notion of liberty.

A client asked recently whether we were seeing a recession due to the COVID-19 pandemic. Truthfully, many lawyers are busier than ever, though not necessarily with new work. Each court in each different county or circuit has set up specific procedures for handling cases. Some courts, immediately set up video conferencing for hearings; others took a bit more time to explore options. Orange County is in the Ninth Circuit while Seminole County is in the 18th Circuit. Each has a different procedure and both vary in how they handle hearings.  

Criminal courts in all areas had largely instituted video conferencing for first appearance years ago, but with a pandemic the larger problem is how to provide safe and secure access for those arrested to meet privately with their attorney. All courts in Florida, the Supreme Court, District Courts of Appeal, Circuit and County Courts have been wrestling with  how to assure the safety of the public, how to prevent exposure from those infected, how to protect the rights of those accused of crimes and how to protect the due process to assure fair and just hearings. Jury trials are being scheduled but may not occur until 2021 or later. This places our entire judicial system in peril.

Family attorneys began using Collaborative methods is not always easy, but using a team concept and keeping decisions about your family within your control makes collaboration effective in Central Florida. Using Zoom meetings, for coaches, clients and professionals to work out all the details before even filing can allow a much more controllable process and keep the outcome well within your needs.

Divorcing spouses often have difficulty trusting one another, and unfortunately our courts’ adversarial proceedings in litigation tend to further erode openness and trust by encouraging spouses to fight not only for their own interests but also against the interests of their spouse. When Collaboration occurs, the family’s needs are addressed by professionals and the spouses do not have to “trust” the litigation. They only have to trust the professional who are the guardians of the process. The Collaborative Process works, even in pandemic times and 2020.

Pandemics lead to change. How much change occurs depends on your choices and may be impacted by the choices of those around you. Wash your hands; wear a mask; take care of yourself and others. Peace.


Aubrey Ducker

Aubrey Ducker

Family Law Attorney

Child Support and the Pandemic

As almost every aspect of our lives continues to be impacted by the Covid-19 pandemic, many people are finding it hard to make ends meet as they wait for the economy to re-open.  This is particularly true for those that must still try to manage on-going Court ordered financial obligations such as child support.  I have received a lot of questions lately from parents eager to learn about whether they can modify their existing support payments due to loss of income during Covid-19, and while the general rule in family law cases is that child support can be modified, people seeking Covid-19 related modifications may face certain hurdles.  

Florida law permits the modification of child support obligations, either up or down, based on a substantial, unanticipated, long-term change of circumstances.  In most cases, child support modification requests are based on a reduction in a parent’s income usually caused by a change in or elimination of employment.  If such a change in employment has occurred, then the proper avenue to pursue is to seek a modification through the filing of a Supplemental Petition for Modification.  In such a petition, the parent seeking modification must fully state the reasons as to why they can no longer make their Court-ordered support payments, including indicating when the income reduction started and how long the situation may be expected to last.   

here are two main issues with requesting child support modifications during the Covid-19 pandemic that I can see.  The first issue is whether or not a parent’s reduction in income would constitute a long-term change or a change that is more permanent in nature, versus a temporary reduction in income that has the potential, in the near future, to go back to pre-Covid 19 levels.  This is evaluated on a case-by-case basis and determined by the industry in which a paying parent works, including the ability of that industry to get back going again.  For example, if a parent is furloughed from their employment, but expected to return to work by June, then it may be difficult to argue to the Court for a modification of your support obligations.  If however, you work in an industry, or at a job that may not bounce back quickly, or at all, then your chances of obtaining a modification of your child support amounts would be greatly increased.   

he other main issue that could arise, depending on the county in which you live, is how to access to Court system during Covid-19.  Back in March, the Florida Supreme Court issued orders that effectively closed courthouses throughout the State for all but essential court proceedings through the end of May.  Under the guidelines provided by the Florida Supreme Court, the lower courts throughout Florida are to try to continue court services and proceedings using whatever technology is available to them.  This means many non-essential hearings, such as child support issues, may be able to be heard telephonically or even by video until the Courts reopen to the public.  

Each county is handling these issues slightly differently, with some counties moving full steam ahead with video and telephonic hearings, while others are only hearing essential matters, so if you have questions about your child support during Covid-19 it’s important to speak with an experienced family law attorney to discuss your specific case and circumstances.  Attorney Russell J. Frank is a partner at CPLS, P.A., and focuses his practice areas on family and marital law.  Contact Attorney Frank today at to discuss any family or marital legal issues you may be experiencing.

Russell Frank

Russell Frank

Family Law Attorney

Co-Parenting During a Pandemic

There is a lot of uncertainty throughout the world right now during this unprecedented pandemic caused by Covid-19. As we continue to navigate the unknown and deal with societal changes that could represent some new norms, many parents are having real concerns over how to effectively co-parent during this pandemic. As I try to tell my clients, the most important thing that parents can do during this time is to try to have effective communication with their co-parent. Now I know sometimes that is a lot easier said than done, but effective and regular communication regarding the issues that we are all concerned with now, including finances, schooling, child care issues and getting the essentials we need from day-to-day, can help assist parents in ensuring that their children are being taken care of during these times.

In cases where the Court has already entered a final judgment, a parenting plan should breakdown timesharing schedules, but if your case is still pending, you may not have that clarity. If you are a parent that does not have your child the majority of time, then it is possible you are being denied timesharing during the Covid-19 pandemic. If that is the case, then what options do these parents have at this time?  Any parent can always file a motion in court to enforce timesharing or present any other issue related to a child that is being affected by this pandemic. While the hearing may not take place in person, many courts will hear the disputes over telephone or video if the parties can agree on conducting a hearing in such a way. If a parent is being denied physical timesharing, then virtual timesharing should, at a minimum, take its place, if not increase during the length of time that timesharing cannot occur.

If you are being denied reasonable contact and access during Covid-19, most Courts will take these denials of timesharing very seriously. The Court has broad powers under contempt and enforcement proceedings to fashion remedies to make sure that a parent who is being denied access will get that made up, whether that is by extended timesharing over the summer or holidays, or when the stay-at-home orders are lifted. If you are being denied access, it is important to understand what rights you have during these very uncertain times to continue having the ability to access and parent your children for as long as Covid19 continues to be a significant issue for our society.

If you have questions about Covid-19 and your family law case it’s important to speak with an experienced family law attorney to discuss your specific case and circumstances. Attorney Russell J. Frank is a partner at CPLS, P.A., and focuses his practice areas on family and marital law. Contact Attorney Frank today at to discuss any family or marital legal issues you may be experiencing.

Russell Frank

Russell Frank

Family Law Attorney

Top 5 Child Support Issues

Top 5 Child Support Issues in my Daily Practice

A Summary of the Most Litigated Child Support Issues

1. Determining Incomes

One of the most important issues to determine when calculating child support is the parent’s incomes.  Aside from the number of overnights that each parent receives, the income levels of the parents will be the most determinative factor in calculating child support.  This may seem fairly straightforward, and generally it can be, particularly where a parent is gainfully employed by a company that pays them regular wages, however, this becomes much more complicated if a parent is self-employed or works under the table without receiving regular paychecks.   In order to properly determine a parent’s income it may become necessary to look at how much they have historically made over the course of their adulthood and/or career, or even hire a vocational expert to try and prove to the Court what that parent’s true income should be established at.  Since income levels are such an important factor in determining child support, it’s imperative to have an accurate assessment of the income levels of both parents.

2. Retroactive Support

Many times, when a couple splits up, one parent will either remain in the home with the children, or they will leave the home and take the children with them.  In either scenario, once the parents stop living together, the clock for retroactive, or past due, child support can begin ticking, and the more time that expires without the payment of formal child support, the higher the retroactive support amounts may climb.  Since a child is owed a duty of support, the non-residential parent must try to protect themselves against a large monetary judgment for retroactive support by either filing a family law case to determine timesharing and child support quickly after separation, or by ensuring, and documenting, that child support continues to be paid past the date of the parties’ separation.  In those situations, paying child support with a money order that clearly delineates that the payments are being made as and for child support would be an ideal way to document paid child support.  

3. Fight over Overnights

As referenced above, another key determinative factor in establishing a child support amount is the number of overnights that each parent receives with the children.   In general terms, the more overnights a non-residential parent, or a parent that does not have the majority of the yearly overnights, has with their children, the less they would end up paying in child support.  This is certainly not a secret amongst family law attorneys and litigants, so many times the number of overnights a parent has becomes quite important to the overall case.  While some of the parents who are likely to pay child support may argue for an equal timesharing schedule, many times just to reduce their support obligations, it becomes important to ensure that each parent be able to articulate to the Court why such a schedule would be consistent with the children’s best interests.   At the end of the day, the children’s best interests will be the primary consideration for the Court in determining a timesharing schedule.  

4. Modifications

As is generally the case in family law, nothing is ever set in stone, and child support is no exception.  Florida law does allow for the modification of child support amounts, either up or down, based on a substantial, unanticipated, long-term change of circumstances.  In most cases this will be based on either a substantial reduction, or increase, in either parent’s income.  In many of the cases I see, a parent is seeking to reduce their child support obligations based on a change or elimination of employment, or based on health considerations that may prevent a parent from working as they have in the past.  In other cases, a parent receiving child support may request an increase in child support if the other parent’s income has substantially increased, if the receiving parent’s income has been decreased or eliminated, or if any of the children’s needs have changed due to health or medical issues.  

5. Contempt / Enforcement 

Being granted a child support order in your favor can sometimes only be half of the battle, as collecting the child support may in fact be the hardest part for some parents.  If a parent does not have the type of job that would allow for an income withholding order, such that the child support would be automatically taken from the paying parent’s paycheck by their employer, then you become reliant on the other party’s direct compliance with the child support order.  If a parent is not paying child support in compliance with the child support order, then it may be necessary to file a motion for contempt and enforcement, asking the Court to hold the non-paying party responsible for the non-payment of child support.  Some of the tools, or sanctions, the Court has to force compliance with a child support order include ordering back-pay, with interest, punitive and compensatory fines, suspension of driving privileges, garnishment of tax returns and bank accounts, awards of attorney’s fees and costs, and even incarceration for a non-paying parent.  

If you have questions about your child support or your domestic relations case it’s important to speak with an experienced family law attorney to discuss your specific case and circumstances. Attorney Russell J. Frank is a partner at CPLS, P.A. and focuses his practice areas on family and marital law. Contact Attorney Frank today at to discuss any family or marital legal issues you may be experiencing.

Russell Frank

Russell Frank

Family Law Attorney