author: PER CURIAM.

text:
    In re AMENDMENTS TO THE FLORIDA FAMILY LAW RULES.
    No. SC06-2513.
    Supreme Court of Florida.
    Sept. 30, 2010.
    Steven Patrick Combs, Chair, Family Law Rules Committee, Jacksonville, FL, and John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, FL, for Complainant.
    Jeffrey A. Weissman of Gladstone and Weissman, P.A., Fort Lauderdale, FL, and Allyson Hughes, P.A., New Port Richey, FL; and Ronald L. Bornstein of Hodgson Russ, LLP, Boca Raton, FL, and Scott L. Rubin of Fogel Rubin and Fogel, Miami, FL, Responding with comments.
   PER CURIAM.

This matter is before the Court for consideration of proposed amendments to the Florida Family Law Rules of Procedure and Forms and the Florida Supreme Court Approved Family Law Forms. We have jurisdiction. See art. V, § 2(a), Fla. Const.

BACKGROUND

In this case, the Family Law Rules Committee (Committee) initially filed a report proposing two new forms for use in proceedings to disestablish paternity or terminate child support and three new forms for use in proceedings relating to the relocation of parents with children subject to visitation or custody orders. The forms were proposed in response to legislation passed in the 2006 legislative session. See ch. 2006-265, Laws of Fla.; ch. 2006-245, Laws of Fla. The Committee also stated that it believed that additional relocation forms would be necessary to implement chapter 2006-245 and requested the Court’s direction as to whether these additional forms should be developed. After considering the Committee’s proposals, the Court informally sought input from the Advisory Workgroup on The Florida Supreme Court Approved Family Law Forms (Workgroup) with respect to the need for additional relocation forms and directed the Committee to submit a supplemental report clarifying whether a new Florida Family Law Rule of Procedure should be adopted to implement the statutory provisions and, if so, proposing an appropriate rule.

Subsequently, the Committee filed its supplemental report, proposing new Family Law Rule 12.635 (Relocation of Minor Child), and the Workgroup presented the Court with nine new relocation forms. Proposed new rule 12.635 and all of the new proposed forms (both on relocation and disestablishing paternity) were published for comment. The Family Law Section of The Florida Bar filed a comment opposing the proposed new rule 12.635 and subsequently worked with the Committee to develop a revised proposal. After eonsid-ering the revised proposal, the Court, on its own motion, proposed an alternative version of the relocation rule, published it for comment, and again requested comments with regard to the twelve (three from the Committee and nine from the Workgroup) proposed relocation forms.

In the interim, in both the 2008 and 2009 legislative sessions, the Legislature amended section 61.13001, Florida Statutes, governing relocation. See ch. 2008-61, § 9, Laws of Fla. (amending section 61.13001 primarily to remove the terms “visitation,” “primary residential parent,” “primary residence,” “custody” and similar terms, and insert references to “time-sharing” and “parenting plan”); ch. 2009-180, § 4, Laws of Fla. (significantly amending the relocation process set out in section 61.13001). These legislative changes necessitated significant revisions to the proposed rule and forms. In fact, after the 2009 legislative session, the Committee advised the Court that the three relocation forms it had initially proposed were rendered unnecessary by the amendments to the statute. The Committee also later advised the Court that its position was that a rule addressing relocation was no longer necessary because the statute adequately set forth the relocation process, and to propose a rule would serve only as a restatement of the statute. The Workgroup continued to revise the proposed relocation forms in order to have them conform with the 2008 and 2009 legislative changes and has now submitted to the Court eleven new relocation forms for consideration.

AMENDMENTS

The Court now has for consideration (1) the Committee’s proposed new forms 12.951(a) (Petition to Disestablish Paternity and/or Terminate Child Support Obligation) and 12.951(b) (Order Disestablishing Paternity and/or Terminating Child Support Obligation); (2) new rule 12.635 (addressing relocation), as previously proposed by the Committee, and the alternative version of this rule proposed on the Court’s own motion; and (3) eleven new relocation forms proposed by the Work-group.

Disestablishment of Paternity Forms

Section 742.18, Florida Statutes (2009), permits a man who is not the biological father of a child to petition to disestablish paternity and terminate a child support obligation. Among other things, the statute sets forth the required content of a petition to disestablish paternity and specific factual findings which must be made by the court in granting such a petition. See § 742.18(l)-(2), Fla. Stat. (2009). The proposed new forms, providing a petition and order for use in these proceedings, are consistent with the relevant legislation, and no comments were filed with regard to them. Accordingly, new forms 12.951(a) (Petition to Disestablish Paternity and/or Terminate Child Support Obligation) and 12.951(b) (Order Disestablishing Paternity and/or Terminating Child Support Obligation) are adopted as Florida Supreme Court Approved Family Law Forms.

Relocation Rule

As discussed above, the Committee, working with the Family Law Section of The Florida Bar, previously proposed new rule 12.635 (Relocation of Minor Child), but that proposal was based upon the prior version of section 61.13001 that set forth different requirements. The Court’s own proposed rule 12.635 was also based upon the prior version of the statute. As noted, the Committee now recommends that no rule of procedure is necessary, in that section 61.13001, as amended, sufficiently sets forth the relocation procedures, and a rule would only reiterate the statute. We defer to the Committee on this matter and decline to adopt a relocation rule at this time.

Relocation Forms

The eleven new relocation forms submitted by the Workgroup are adopted as Florida Supreme Court Approved Family Law Forms. The first two forms, form 12.950(a) (Relocation by Agreement) and accompanying form 12.950(b) (Motion for Order Permitting Relocation by Agreement), are designed to implement section 61.13001(2), Florida Statutes (2009). In accordance with this section, the forms elicit information regarding consent to the relocation, access and time-sharing for the non-relocating parent or other person entitled to such, and any post-relocation transportation arrangements.

Forms 12.950(c) (Petition for Dissolution of Marriage with Dependent or Minor Children and Relocation) and 12.950(d) (Supplemental Petition to Permit Relocation with Minor Children) are intended to be used when the relocation process is initiated by a petition in accordance with section 61.13001(3), Florida Statutes (2009). Specifically, form 12.950(c) is to be used when relocation is to occur during a dissolution proceeding.

The next six forms, 12.950(e) (Motion for Temporary Order Granting Relocation), 12.950(f) (Temporary Order Granting/Denying Relocation), 12.950(g) (Motion for Civil Contempt and/or Return of Children), 12.950(h) (Order on Motion for Civil Contempt and/or Return of Children), 12.950(i) (Final Judgment/Supplemental Final Judgment Granting Relocation), and 12.950(j) (Final Judgment/Supplemental Final Judgment Denying Relocation), are intended to address issues which may arise during the course of relocation proceedings and to provide orders necessary to the proceedings.

Finally, form 12.995(c) (Relocation/Long Distance Parenting Plan) is designed for use as an alternative to the two existing Court-approved parenting plan forms, forms 12.995(a) and (b), when either relocation or geographic distance between the parents of the minor children has a bearing on the issues of parental responsibility and time-sharing.

CONCLUSION

Accordingly, the Florida Family Law Rules of Procedure and the Florida Supreme Court Approved Family Law Forms are hereby amended as reflected in the appendix to this opinion. In the rules, new language is underscored; deletions are struck through. The new forms are fully engrossed and ready for use. The amendments and new forms shall become effective immediately upon the release of this opinion. Additionally, because the new relocation forms, in their revised form, have not yet been published for comment, interested persons shall have sixty days from the date of this opinion in which to file comments, as to those forms only, with the Court.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

APPENDIX

RULE 12.280. GENERAL PROVISIONS GOVERNING DISCOVERY

Florida Rule of Civil Procedure 1.280 shall govern general provisions concerning discovery in family law matters with the following exceptions:

(a)-(b) [No change]
(c) Documents Considered Confidential. A determination as to the confidentiality of a court record shall be made in accordance with Florida Rule of Judicial Administration 2.051-2.420.
(d) Sealing of Records. Records found to be confidential under Florida Rule of Judicial Administration 2^0512.420 shall be sealed on request of a party.

Commentary

[No change]

RULE 12.650. OVERRIDE OF FAMILY VIOLENCE INDICATOR

(a)-(i) [No change]

Commentary

This rule implements the requirements of 42 U.S.C. § 653, providing for a state court to override a family violence indicator on a record at the Federal Parent Locator Service. It does not apply to any other proceeding involving family violence or any other court records. The limitations on access to the Federal Parent Locator Service and this override process are governed by federal law.

Proceedings under this rule would arise when an authorized person has attempted to obtain information from the Federal Parent Locator Service but has been notified that the information cannot be released because of a family violence indicator. For example, a petitioner may be a noncustodial parent who has attempted to serve the custodial parent in an action to enforce visitation but was unable to effect service of process on the custodial parent. The court may have authorized access to the Federal Parent Locator Service in order to locate the custodial parent for purposes of service of process. If the report from the Federal Parent Locator Service indicates that the information cannot be released because of a family violence indicator, the noncustodial parent would be authorized to petition the court pursuant to this rule to override the family violence indicator.

The purpose of these proceedings is to determine whether to release location information from the Federal Parent Locator Service notwithstanding the family violence indicator. The court must determine whether release of the location information to the petitioner would be harmful to the respondent. If the court determines that release of the location information would not be harmful, the information may be released to the petitioner. If the respondent agrees to designate a third party for service of process, the court may deny the request for location information. In these circumstances, the designation of a third party for service of process is procedural only and does not provide a separate basis for jurisdiction over the respondent.

The court must use care to ensure that information from the Federal Parent Locator Service or other location information in the court record is not inadvertently released to the petitioner, thus defeating any interest of the respondent in maintaining nondisclosure.

The name of the state that placed the family violence indicator on the record may assist the petitioner in obtaining access to the respondent. If the name of the state that placed the family violence indicator on the record is supplied from the Federal Parent Locator Service, but an address for the respondent is not provided, the court should not release the name of the state to the petitioner. Disclosure of this information could assist the petitioner in locating the respondent, may place the respondent in danger, and does not give the respondent an opportunity to be heard by the court prior to release of the information.

Because the interest of the respondent is to keep location information from the petitioner, having both the petitioner and respondent appear at a hearing at the same time may also result in the petitioner obtaining location information about the respondent. If a hearing must be held where both the petitioner and respondent are present, the court should use whatever security measures are available to prevent inadvertent disclosure of the respondent’s location information.

Each state establishes its own criteria, consistent with federal law, for placing a family violence indicator on a record. Some states require a judicial determination of domestic violence or child abuse before a family violence indicator is placed on a record. The criteria for a family violence indicator in Florida are in section 61.1825, Florida Statutes.

The records in these proceedings are confidential under 42 U.S.C. §§ 653 and 654. Florida Rule of Judicial Administration 2.051 [renumbered as 2,420 in 2006] also exempts from public disclosure any records made confidential by federal law.

Committee Note

[No change]

INSTRUCTIONS FOR FLORIDA SUPREME COURT APPROVED FAMILY LAW FORM 12.950(a), AGREEMENT FOR RELOCATION WITH MINOR CHILD(REN) (09/10)

When should this form be used?

This form should be used when the parents and every other person entitled to access to, visitation, or time-sharing with the minor child(ren) are in agreement , and are asking the court to permit the relocation of the child(ren)’s principal residence. “Other Person” means an individual who is not the parent, but with whom the child resides pursuant to court order, or who has the right of access to, time-sharing with, or visitation with the child(ren). This form can be used at any time after either a petition or supplemental petition to relocate has been filed and the parties reach an agreement; OR can be used when the parties are in agreement and there is an existing cause of action, judgment, or decree of record pertaining to the child(ren)’s residence or time-sharing schedule. Either an agreement for relocation or a petition to relocate is required when:

1. You plan to relocate the child(ren)’s residence more than 50 miles from the child(ren)’s principal residence at the time of the last order which established or modified either a Parenting Plan or time-sharing schedule or at the time of filing of the pending action.

2. The court has not already entered an order granting permission to relocate.

3. The relocation will be for a period of 60 consecutive days or more, not including, any absence for purposes of vacation, education, or health care for the children).

4. Your order or final judgment defining custody, primary residence, the Parenting Plan, or time-sharing was entered before October 1, 2009 and the order does not expressly govern the relocation of the children); or was entered on or after October 1, 2009, or your case was pending on October 1, 2009.

5. If the visitation or time-sharing schedule will change due to the relocation, a Parenting Plan with a time-sharing schedule must be included with the Agreement. Regardless of whether there is an agreement, the court reserves jurisdiction to modify issues relating to the minor child(ren).

This form should be typed or printed in black ink. You must fill in all sections of the form. If you are an “other person” entitled to access, visitation, or time-sharing with the ehild(ren), substitute your name for Mother or Father in the form and “parties” for “parents.” After completing the form, you should sign the form before a notary public or deputy clerk.

What should I do next?

For your case to proceed, you must properly notify the court by filing the original of the Agreement and a Motion for Order Permitting Relocation by Agreement, Florida Supreme Court Approved Family Law Form, 12.950(b), with the clerk of the circuit court of one of the following: the circuit court which has jurisdiction in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act; the circuit court in the county in which either parent and the child(ren) reside; or the circuit court in which the original action was adjudicated. If the order was entered in another state, or if the child(ren) live(s) in another state, you should speak with an attorney about where to file this form. You should file the original with the clerk of the circuit court and keep a copy for your records.

If the issue of the child(ren)’s physical residence is already before the court in an ongoing proceeding or through a judgment issued by the court, the court may enter an order adopting the Agreement without holding a hearing once both parties have signed it and neither has requested a hearing. When a hearing is not timely requested, the court shall presume that relocation is in the best interest of the child(ren) and may adopt the Agreement without holding a hearing.

If one or more of the parties to the Agreement timely requests a hearing in writing within 10 days after the date the Agreement is filed with the court, then you must notify the other party(ies) of the hearing by using a Notice of Hearing (General), Florida Supreme Court Approved Family Law Form 12.923, or other appropriate notice of hearing form. The court will then enter an order after the hearing.

Where can I look for more information?

Before proceeding, you should read “General Information for Self-Represented Litigants” found at the beginning of these forms. The words that are in “bold underline” in these instructions are defined there. For further information, see chapter 61, Florida Statutes.

If your case involves a modification of any provision relating to child support, you should also check with the clerk of the circuit court in the county in which you are filing this Agreement for Relocation to determine if any other forms must be filed.

If the parties agree to a modification of child support, the following forms should be filed with this Agreement:

• A Child Support Guidelines Worksheet, Florida Family Law Rules of Procedure Form 12.902(e),

• A completed Family Law Financial Affidavit, Florida Family Law Rules of Procedure Form 12.902(b) or (c).

• A completed Uniform Child Custody Jurisdiction and Enforcement Act (UC-CJEA) Affidavit, Florida Supreme Court Approved Family Law Form 12.902(d).

Special notes...

The Agreement for Relocation with Minor Children must contain a Parenting Plan with a time-sharing schedule. At a minimum, the Parenting Plan must describe in adequate detail:

• How the parties will share and be responsible for the daily tasks associated with the upbringing of the child(ren),

• The time-sharing schedule that specifies the time that the minor child(ren) will spend with each parent and every other person entitled to access or time-sharing,

• A designation of who will be responsible for any and all forms of health care, school-related matters, including the address to be used for school-boundary determination and registration, and any other activities,

• The methods and technologies that the parents will use to communicate with the child(ren), and

• Any transportation arrangements related to access or time-sharing.

The best interests of the child(ren) is the primary consideration in the Parenting Plan. In creating the Parenting Plan, all circumstances between the parties, including the parties’ historic relationship, domestic violence, and other factors must be taken into consideration. Determination of the best interests of the child(ren) shall be made by evaluating all of the factors affecting the welfare and interest of the particular minor child(ren) and the circumstances of the family as listed in s. 61.13(3), Florida Statutes.

This standard form does not include every possible issue that may be relevant to the facts of your case. The Parenting Plan should be as detailed as possible to address the time-sharing schedule. Additional provisions should be added to address all of the relevant factors. The parties should give special consideration to the age and needs of each child.

The Parenting Plan and time-sharing schedule may be set forth in the body of the Agreement for Relocation with Minor Children or may be attached as a separate document. You may attach a Relocation/Long-Distance Parenting Plan, Florida Supreme Court Approved Family Law Form 12.995(c), or similar form.

In developing the Parenting Plan, you may wish to consult or review other materials which are available at your local library, law library or through national and state family organizations.

Nonlawyer... Remember, a person who is NOT an attorney is called a nonlawyer. If a nonlawyer helps you fill out these forms, that person must give you a copy of a Disclosure from Nonlawyer, Florida Family Law Rules of Procedure Form 12.900(a), before he or she helps you. A nonlawyer helping you fill out these forms must put his or her name, address, and telephone number on the bottom of the last page of every form he or she helps you complete.

INSTRUCTIONS FOR FLORIDA SUPREME COURT APPROVED FAMILY LAW FORM 12.950(b), MOTION FOR ORDER PERMITTING RELOCATION BY AGREEMENT (09/10)

When should this form be used?

This form should be used when the parents and every other person entitled to access to, visitation, or time-sharing with the minor children) are in agreement and are asking the court to permit the relocation of the children). “Other Person” means an individual who is not the parent, but with whom the child resides pursuant to court order, or who has the right of access to, time-sharing with, or visitation with the child(ren). You may file a Motion for Order Permitting Relocation with Agreement if the following are true:

• One of the parents or a person entitled to access to or time-sharing with the children wishes to relocate the children) to a residence more than 50 miles from the ehild(ren)’s principal place of residence at the time of the last order establishing or modifying time-sharing or at time of filing of the pending action.

• There is an existing cause of action, judgment, or decree of record pertaining to the child(ren)’s residence or time sharing schedule.

• The parents and every other person entitled to access to or time-sharing with the children have signed a written agreement, Agreement for Relocation with Minor Child(ren), Florida Supreme Court Approved Family Law Form, 12.950(a), or similar form which:

1. Reflects the consent to the relocation;

2. Defines an access or time-sharing schedule for the non-relocating parent and any other persons who are entitled to access or time-sharing; and

3. Describes, if necessary, any transportation arrangements related to access or time-sharing.

• Your order regarding custody, primary residence, the parenting plan, time-sharing, or access to or with the child(ren) was entered before October 1, 2009 and the order does not expressly govern the relocation of the child(ren); was entered on or after October 1, 2009; or your case was pending on October 1, 2009.

This form should be typed or printed in black ink. You must fill in all sections of the form. If you are an “other person” entitled to access, visitation, or time-sharing with the child(ren), substitute your name for Mother or Father in the form. After completing the form, you should sign the form before a notary public or deputy clerk. You should file the form in the county where the original order or judgment was entered. If the order or judgment was entered in another state, or if the child(ren) live(s) in another state, you should speak with an attorney about where to file this form.

What should I do next?

After completing this form, you should file the original with the clerk of the circuit court where there is an existing cause of action, judgment, or decree of record pertaining to the ehild(ren)’s residence or time-sharing schedule and keep a copy for your records. The original Agreement for Relocation with Minor Children) should be attached to Motion or filed with the clerk of the circuit court at the same time. If both parties agree, the court may ratify the Agreement without the necessity of an evidentiary hearing. You should check with the clerk, family law intake staff, or judicial assistant for the proper way to submit the Motion and a proposed Final Judgment/Supplemental Final Judgment Granting Relocation, Florida Supreme Court Approved Family Law Form 12.950(i), to the judge. If one or more of the parties to the Agreement timely requests a hearing in writing within 10 days after the date the Agreement is filed with the court, then you must notify the other party(ies) of the hearing by using a Notice of Hearing (General), Florida Supreme Court Approved Family Law Form 12.923, or other appropriate notice of hearing form. The court will then enter an order after hearing. If a hearing is not timely requested, the court shall presume that relocation is in the best interest of the child(ren) and may ratify the Agreement without an evidentiary hearing.

Where can I look for more information?

Before proceeding, you should read “General Information for Self-Represented Litigants” found at the beginning of these forms. The words that are in “bold underline” in these instructions are defined there. For further information, see chapter 61, Florida Statutes.

If your case involved a modification of any provision relating to child support, you should also check with the clerk of the circuit court in the county in which you are filing the Motion for Order Permitting Relocation with Minor Child(ren) and Agreement for Relocation with Minor Child(ren) to determine if any other forms must be filed. Nonlawyer ... Remember, a person who is NOT an attorney is called a nonlawyer. If a nonlawyer helps you fill out these forms, that person must give you a copy of a Disclosure from Nonlawyer, Florida Family Law Rules of Procedure Former 12.900(a), before he or she helps you. A nonlawyer helping you fill out these forms must put his or her name, address, and telephone number on the bottom of the last page of every form he or she helps you complete.

INSTRUCTIONS FOR FLORIDA SUPREME COURT APPROVED FAMILY LAW FORM 12.950(c), PETITION FOR DISSOLUTION OF MARRIAGE WITH DEPENDENT OR MINOR CHILD(REN) AND RELOCATION (09/10)

When should this form be used?

This form should be used when a husband or wife is filing for dissolution of marriage, there are dependent or minor children and pursuant to Section 61.13001, Florida Statutes:

1. You plan to relocate your residence more than 50 miles from the principal place of residence you have at the time of filing this petition; and

2. The change of location is for at least 60 consecutive days, not including a temporary absence from your principal place of residence for purposes of vacation, education or the provision of health care for the minor child(ren).

You and/or your spouse must have lived in Florida for at least 6 months before filing for dissolution of marriage in Florida.

This form should be typed or printed in black ink. After completing this form, you should sign the form before a notary public or deputy clerk. You should file the original with the clerk of the circuit court in the county where you live and keep a copy for your records.

What should I do next?

For your case to proceed, you must properly notify your spouse and every other person entitled to access or time-sharing with the child(ren) of the petition. “Other Person” means an individual who is not the parent but with whom the child resides pursuant to court order, or who has the right of access to, time-sharing with, or visitation with the children). If you know where he or she lives, you should use personal service. If you absolutely do not know where he or she lives, you may use constructive service. You may also be able to use constructive service if your spouse or the other person resides in another state or country. However, if constructive service is used, other than granting a divorce, the court may only grant limited relief. For more information on constructive sendee, see Notice of Action for Dissolution of Marriage, Florida Supreme Court Appi’oved Family Law Form 12.913(a), and Affidavit of Diligent Search and Inquiry, Florida Family Law Rules of Procedure Form 12.913(b). If your spouse is in the military service of the United States, additional steps for service may be required. See, for example, Memorandum for Certificate of Military Service, Florida Supreme Court Approved Family Law Form 12.912(a). In sum, the law regarding constructive service and service on an individual in the military service is very complex and you may wish to consult an attorney regarding these issues.

If personal service is used, the respondent has 20 days to answer after being served with your petition. Your case will then generally proceed in one of the following three ways:

DEFAULT. If after 20 days, your spouse has not filed an answer, you may file a Motion for Default, Florida Supreme Court Approved Family Law Form 12.922(a), with the clerk of court. Then, if you have filed all of the required papers, you may call the clerk, family law intake staff, or judicial assistant to set a final hearing. You must notify your spouse of the hearing by using a Notice of Hearing (General), Florida Supreme Court Approved Family Law Form 12.923, or other appropriate notice of hearing form.

UNCONTESTED. If your spouse files an answer that agrees with everything in your petition or an answer and waiver, and you have complied with mandatory disclosure and filed all of the required papers, you may call the clerk, family law intake staff, or judicial assistant to set a final hearing. You must notify your spouse of the hearing by using a Notice of Hearing (General), Florida Supreme Court Approved Family Law Form 12.923, or other appropriate notice of hearing form. CONTESTED. If your spouse files an answer or an answer and counterpetition, which disagrees with or denies anything in your petition, and you are unable to settle the disputed issues, you should file a Notice for Trial, Florida Supreme Court Approved Family Law Form 12.924, after you have complied with mandatory disclosure and filed all of the required papers. Some circuits may require the completion of mediation before a final hearing may be set. You should contact the clerk, family law intake staff, or judicial assistant for instructions on how to set your case for trial (final hearing). If your spouse files an answer and counterpetition, you should answer the counterpetition within 20 days using an Answer to Counterpetition, Florida Supreme Court Approved Family Law Form 12.903(d).

Where can I look for more information?

Before proceeding, you should read “General Information for Self-Represented Litigants” found at the beginning of these forms. The words that are in “bold underline” in these instructions are defined there. For further information, see chapter 61, Florida Statutes.

Special notes...

If you do not have the money to pay the filing fee, you may obtain an Application for Determination of Civil Indigent Status from the clerk, fill it out, and the clerk will determine whether you are eligible to have filing fees deferred.

If you want to keep your address confidential because you are the victim of sexual battery, aggravated child abuse, aggravated stalking, harassment, aggravated battery, or domestic violence, do not enter the address, telephone, and fax information at the bottom of this form. Instead, file a Request for Confidential Filing of Address, Florida Supreme Court Approved Family Law Form 12.980(h).

With this form, you must also file the following:

• Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) Affidavit, Florida Supreme Court Approved Family Law Form 12.902(d).

• Child Support Guidelines Worksheet, Florida Family Law Rules of Procedure Form 12.902(e), if you are asking that child support be ordered in the final judgment. (If you do not know your spouse’s income, you may file this worksheet after his or her financial affidavit has been served on you.)

• Affidavit of Corroborating Witness, Florida Supreme Court Approved Family Law Form 12.902(f) OR photocopy of current Florida driver’s license, Florida identification card, or voter’s registration card (issue date of copied document must be at least six months before date case is actually filed with the clerk of the circuit court).

• Marital Settlement Agreement for Dissolution of Marriage with Dependent or Minor Child(ren), Florida Supreme Court Approved Family Law Form 12.902(f)(1), if you and your spouse have reached an agreement on any or all of the issues.

• Notice of Social Security Number, Florida Supreme Court Approved Family Law Form 12.902(j).

• Family Law Financial Affidavit, Florida Family Law Rules of Procedure Form 12.902(b) or (c). (This must be filed with the petition if the petitioner seeks to establish child support. Otherwise, it must be filed within 45 days of service of the petition on the respondent.)

• Certificate of Compliance with Mandatory Disclosure, Florida Family Law Rules of Procedure Form 12.932. (This must be filed within 45 days of service of the petition on the respondent, if not filed at the time of the petition, unless you and your spouse have agreed not to exchange these documents.)

• Parenting Plan, Florida Supreme Court Approved Family Law Form 12.995(a), Safety-Focused Parenting Plan, Form 12.995(b), or Relocation/Long-Distance Parenting Plan, Form 12.995(c). If the parents have reached an agreement, a signed and notarized Parenting Plan should be attached. If the parents have not reached an agreement, a proposed Parenting Plan may be filed.

Updating Information. A parent or other person seeking to relocate has a continuing duty to provide current and updated information required by the relocation statute when that information becomes known.

Parenting Plan and Time-Sharing. If you and your spouse are unable to agree on parenting arrangements and a time-sharing schedule, a judge will decide for you as part of establishing a Parenting Plan. The judge will decide the parenting arrangements and time-sharing based on the ehild(ren)’s best interests. Regardless of whether there is an agreement, the court reserves jurisdiction to modify issues relating to the minor child(ren).

The judge may request a parenting plan recommendation or appoint a guardian ad litem in your case. This means that a neutral person will review your situation and report to the judge concerning parenting issues. The purpose of such intervention is to be sure that the best interests of the child(ren) is (are) being served. For more information, you may consult section 61.13, Florida Statutes.

A parenting course must be completed prior to entry of the final judgment. You should contact the clerk, family law intake staff, or judicial assistant about requirements for parenting courses where you live.

Listed below are some terms with which you should become familiar before completing your petition. If you do not fully understand any of the terms below or their implications, you should speak with an attorney before going any further.

• Shared Parental Responsibility

• Sole Parental Responsibility

• Supervised Time-Sharing

• No contact

• Parenting Plan

• Parenting Plan Recommendation

• Time-Sharing Schedule

Child Support. The court may order one parent to pay child support to assist the other parent in meeting the child(ren)’s material needs. Both parents are required to provide financial support, but one parent may be ordered to pay a portion of his or her support for the child(ren) to the other parent. Florida has adopted guidelines for determining the amount of child support to be paid. These guidelines are based on the combined income of both parents and take into account the financial contributions of both parents. You must file a Family Law Financial Affidavit, Florida Family Law Rules of Procedure Form 12.902(b) or (c), and your spouse will be required to do the same. From your financial affidavits, you should be able to calculate the amount of child support that should be paid using the Child Support Guidelines Worksheet, Florida Family Law Rules of Procedure Form 12.902(e). Because the child support guidelines take several factors into consideration, change over time, and vary from state to state, your child support obligation may be more or less than that of other people in seemingly similar situations.

Alimony. Alimony may be awarded to a spouse if the judge finds that he or she needs it and that the other spouse has the ability to pay it. If you want alimony, you must request it in writing in the original petition or counterpetition. If you do not request alimony in writing before the final hearing, it is waived (you may not request it later). You may request either permanent alimony, lump sum alimony, or rehabilitative alimony.

Marital/Nonmarital Assets and Liabilities. Florida law requires an equitable distribution of marital assets and marital liabilities. “Equitable” does not necessarily mean “equal.” Many factors, including child support, time-sharing, and alimony awards, may lead the court to make an unequal (but still equitable) distribution of assets and liabilities. Non-marital assets and nonmarital liabilities are those assets and liabilities which the parties agree or the court determines belong to, or are the responsibility of, only one of the parties. If the parties agree or the court finds an asset or liability to be nonmarital, the judge will not consider it when distributing marital assets and liabilities.

Temporary Relief. If you need temporary relief regarding temporary use of assets, temporary responsibility for liabilities, parental responsibility, relocation and time-sharing with child(ren), temporary child support, or temporary alimony, you may file a Motion for Temporary Support and Time-Sharing with Dependent or Minor Child(ren), Florida Supreme Court Approved Family Law Form 12.947(a) and a Motion for Temporary Relocation, Florida Supreme Court Approved Family Law From 12.950(e). For more information, see the instructions for those forms.

Marital Settlement Agreement. If you and your spouse are able to reach an agreement on any or all of the issues, you should file a Marital Settlement Agreement for Dissolution of Marriage with Dependent or Minor Child(ren), Florida Supreme Court Approved Family Law Form 12.902(f)(1). Both of you must sign this agreement before a notary public or deputy clerk. Any issues on which you are unable to agree will be considered contested and settled by the judge at the final hearing.

Parenting Plan. In all cases involving minor or dependent ehild(ren), a Parenting Plan shall be approved or established by the court. As you are seeking to relocate, the Parenting Plan must include a post-relocation schedule for access and time-sharing together with the necessary transportation arrangements. If you and your spouse have reached an agreement, you should file a Parenting Plan, Florida Supreme Court Approved Family Law Form 12.995(a), a Safety-Focused Parenting Plan, Florida Supreme Court Approved Family Law Form 12.995(b), or a Relocation/Long-Distance Parenting Plan, Florida Supreme Court Approved Family Law Form 12.995(c), which addresses the time-sharing schedule for the child(ren). If you have not reached an agreement, a proposed Parenting Plan may be filed. If the parties are unable to agree, a Parenting Plan will be established by the court.

Final Judgment Form. These family law forms contain a Final Judgment of Dissolution of Marriage with Dependent or Minor Child(ren), Florida Supreme Court Approved Family Law Form 12.990(c)(1), which the judge may use if your case is contested. If you and your spouse reach an agreement on all of the issues, the judge may use a Final Judgment of Dissolution of Marriage with Dependent or Minor Child(ren) (Uncontested), Florida Supreme Court Approved Family Law Form 12.990(b)(1). You should check with the clerk, family law intake staff, or judicial assistant to see if you need to bring a final judgment with you to the hearing. If so, you should type or print the heading, including the circuit, county, case number, division, and the parties’ names, and leave the rest blank for the judge to complete at your hearing or trial.

Nonlawyer. Remember, a person who is NOT an attorney is called a nonlawyer. If a nonlawyer helps you fill out these forms, that person must give you a copy of a Disclosure from Nonlawyer, Florida Family Law Rules of Procedure Form 12.900(a), before he or she helps you. A nonlawyer helping you fill out these forms also must put his or her name, address, and telephone number on the bottom of the last page of every form he or she helps you complete.

INSTRUCTIONS FOR FLORIDA SUPREME COURT APPROVED FAMILY LAW FORM 12.950(d), SUPPLEMENTAL PETITION TO PERMIT RELOCATION WITH MINOR CHILD(REN) (09/10)

When should this form be used?

This form should be used when you are asking the court to permit the relocation of the principal residence of the petitioner if:

1. You plan to relocate your residence more than 50 miles from your principal residence at the time of entry of the last order which established or modified primary residence, custody, visitation, or time-sharing;

2. The court has not entered an order granting permission to relocate.

3. The relocation will be for a period of 60 consecutive days or more, not including any absence for purposes of vacation, education, or health care for the child(ren).

4. Your order regarding custody, primary residence, visitation, time-sharing or parenting plan was entered before October 1, 2009 and the order does not expressly govern the relocation of the ehild(ren); was entered on or after October 1, 2006; or your case was pending on October 1, 2009.

This form should be typed or printed in black ink. You must fill in all sections of the form. After completing the form, you should sign the form before a notary public or deputy clerk. You should file this form in the county where the original order was entered. If the order was entered in another state, or if the child(ren) live(s) in another state, you should speak with an attorney about where to file this form. You should file the original with the clerk of the circuit court and keep a copy for your records.

What should I do next?

For your case to proceed, you must properly notify the other parent and every other person entitled to, access, time-sharing, or visitation with the children) in your case of the supplemental petition. “Other Person” means an individual who is not the parent but with whom the child resides pursuant to court order, or who has the right of access to, time-sharing with, or visitation with the children). If you know where he or she lives, you should use personal service. If you absolutely do not know where he or she lives, you may use constructive service. You may also be able to use constructive service if the other party resides in another state or country. However, if constructive service is used, the court may only grant limited relief. For more information on constructive service, see Notice of Action for Dissolution of Marriage, Florida Supreme Court Approved Family Law Form 12.913(a), and Affidavit of Diligent Search and Inquiry, Florida Family Law Rules of Procedure Form 12.913(b). If the other party is in the military service of the United States, additional steps for service may be required. See, for example, Memorandum for Certificate of Military Service, Florida Supreme Court Approved Family Law Form 12.912(a). The law regarding constructive service and service on an individual in the military service is very complex. If you have any questions about service, you may wish to consult an attorney regarding these issues.

If personal service is used, the other party has 20 days to answer after being served with your supplemental petition. Your case will then generally proceed in one of the following three ways:

DEFAULT... If after 20 days, no answer has been filed, you may file a Motion for Default, Florida Supreme Court Approved Family Law Form 12.922(a), with the clerk

of court. Then, if you have filed all of the required papers, you may call the clerk, family law intake staff, or judicial assistant to set a final hearing. You must notify the other party of the hearing by using a Notice of Hearing (General), Florida Supreme Court Approved Family Law Form 12.923, or other appropriate notice of hearing form.

UNCONTESTED ... If the respondent files either an answer that agrees with everything in your supplemental petition or an answer and waiver, and you have complied with mandatory disclosure and filed all of the required papers, you may call the clerk, family law intake staff, or judicial assistant to set a final hearing. You must notify the other party of the hearing by using a Notice of Hearing (General), Florida Supreme Court Approved Family Law Form 12.923, or other appropriate notice of hearing form.

CONTESTED... If the respondent files either an answer or an answer and coun-terpetition, which disagrees with or denies anything in your supplemental petition, and you are unable to settle the disputed issues, you should file a Notice for Trial, Florida Supreme Court Approved Family Law Form 12.924, after you have complied with mandatory disclosure and filed all of the required papers. Some circuits may require the completion of mediation before a final hearing may be set. Then you should contact the clerk, family law intake staff, or judicial assistant for instructions on how to set your case for trial (final hearing). If the respondent files an answer and counterpetition, you should answer the counterpetition within 20 days using an Answer to Counterpetition, Florida Supreme Court Approved Family Law Form 12.903(d).

Where can I look for more information?

Before proceeding, you should read “General Information for Self-Represented Litigants” found at the beginning of these forms. The words that are in “bold underline” in these instructions are defined there. For further information, see chapter 61, Florida Statutes.

Special notes...

If you do not have the money to pay the filing fee, you may obtain an Application for Determination of Civil Indigent Status from the clerk, fill it out, and the clerk will determine whether you are eligible to have filing fees deferred.

If there is a domestic violence case and you want to keep your address confidential for safety reasons, do not enter the address, telephone number, and fax information at the bottom of this form. Instead, file a Request for Confidential Filing of Address, Florida Supreme Court Approved Family Law Form 12.980(h).

With this form, you must also file the following:

• Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) Affidavit, Florida Supreme Court Approved Family Law Form 12.902(d).

• Child Support Guidelines Worksheet, Florida Family Law Rules of Procedure Form 12.902(e). (If you do not know the other party’s income, you may file this worksheet after his or her financial affidavit has been served on you.)

• Agreement for Relocation, if you have reached an agreement on any or all of the issues attach the proposed Agreement For Relocation with Minor Child(ren). Florida Supreme Court Approved Family Law 12.950(a). Both parties must sign this agreement before a notary public. Any issues on which you are unable to agree will be considered contested and settled by the judge at the final hearing.

• Notice of Social Security Number, Florida Supreme Court Approved Family Law Form 12.902(j), if not previously filed.

• Family Law Financial Affidavit, Florida Family Law Rules of Procedure Form 12.902(b) or (c).

• Certificate of Compliance with Mandatory Disclosure, Florida Family Law Rules of Procedure Form 12.932. (This must be filed within 45 days of service of the supplemental petition on the respondent, if not filed at the time of the supplemental petition, unless you and the other party have agreed not to exchange these documents.)

Updating Information. A parent or other person seeking to relocate has a continuing duty to provide current and updated information required by the relocation statute when that information becomes known.

Parenting and Time-Sharing... If you and the other parent and every other person entitled to access to or time-sharing with the child(ren) are unable to agree on the parenting arrangements and a time-sharing schedule, a judge will decide for you as part of establishing a Parenting Plan. The judge will decide the parenting arrangements and a time-sharing schedule based upon the child(ren)’s best interests. Regardless of whether there is an agreement, the court reserves jurisdiction to modify issues relating to the minor child(ren).

Failure to obtain an Order prior to relocation renders the supplemental petition to relocate legally insufficient.

The judge may request a parenting plan recommendation or appoint a guardian ad litem in your case. This means that a neutral person will review your situation and report to the judge concerning parenting issues. The purpose of such intervention is to be sure that the best interests of the child(ren) is (are) being served. For more information, you may consult section 61.13, Florida Statutes.

If one has not already been completed, the court may require the completion of a parenting course before a final hearing is set. You should contact the clerk, family law intake staff, or judicial assistant about requirements for parenting courses or mediation where you live.

Child Support... The court may order one parent to pay child support to assist the other parent in meeting the child(ren)’s material needs. Both parents are required to provide financial support, but one parent may be ordered to pay a portion of his or her support for the child(ren) to the other parent. Florida has adopted guidelines for determining the amount of child support to be paid. These guidelines are based on the combined income of both parents and take into account the financial contributions of both parents. You must file a Family Law Financial Affidavit, Florida Family Law Rules of Procedure Form 12.902(b) or (c), and the other parent will be required to do the same. From your financial affidavits, you should be able to calculate the amount of child support that should be paid using the Child Support Guidelines Worksheet, Florida Family Law Rules of Procedure Form 12.902(e). Because the child support guidelines take several factors into consideration, change over time, and vary from state to state, your child support obligation may be more or less than that of other people in seemingly similar situations.

Temporary Relief... If you need temporary relief regarding relocation of the minor ehild(ren), complete paragraph eleven contained in the Supplemental Petition To Permit Relocation of Minor Child(ren).

Final Judgment Form... These family law forms contain a Final Judgment/Supplemental Final Judgment Permitting Relocation, Florida Supreme Court Approved Family Law Form 12.950(i), which the judge may use. You should check with the clerk, family law intake staff, or judicial assistant to see if you need to bring it with you to the hearing. If so, you should type or print the heading, including the circuit, county, case number, division, and the parties’ names, and leave the rest blank for the judge to complete at your hearing or trial. •

Nonlawyer... Remember, a person who is NOT an attorney is called a nonlawyer. If a nonlawyer helps you fill out these forms, that person must give you a copy of a Disclosure from Nonlawyer, Florida Family Law Rules of Procedure Form 12.900(a), before he or she helps you. A nonlawyer helping you fill out these forms also must put his or her name, address, and telephone number on the bottom of the last page of every form he or she helps you complete.

INSTRUCTIONS FOR FLORIDA SUPREME COURT APPROVED FAMILY LAW FORM 12.950(e), MOTION FOR TEMPORARY ORDER GRANTING RELOCATION (09/10)

When should this form be used?

This forth should be used when you have filed a Petition or Supplemental Petition to permit relocation of a child or children, or you are seeking relocation in a pending action. You should use this form to ask the court to permit a temporary relocation of the child(ren)’s principal residence, temporary modification of visitation or time-sharing, temporary modification of child support, and other relief before the court has had an opportunity to make a pei-ma-nent decision on the question of relocation.

This form should be typed or printed in black ink. You must fill in all sections of the form. After completing this form, you should file the original with the clerk of the circuit court in the county where the Petition or Supplemental Petition for Modification to Permit Relocation with Minor Child(ren) was filed and keep a copy for your records.

What should I do next?

A copy of this form, along with all of the other forms required with this motion, must be mailed or hand delivered to the other party in your case. When you have filed all of the required forms, you are ready to set a hearing on your motion. You should check with the clerk, family law intake staff, or judicial assistant for information on the local procedure for scheduling a hearing. When you know the date and time of your hearing, you should notify the other party using a Notice of Hearing (General), Florida Supreme Court Approved Family Law Form 12.923, or other appropriate notice of hearing form.

Where can I look for more information?

Before proceeding, you should read “General Information for Self-Represented Litigants” found at the beginning of these forms. Words in “bold underline” in these instructions are defined there. For further information, see chapter 61, Florida Statutes.

Special notes...

If the temporary relocation of the child(ren) is approved, the court may require you to provide reasonable security, financial or otherwise, and guarantee that the court-ordered contact with the child(ren) will not be interrupted or interfered with by you.

If the relocation is not permitted and the children) is/are relocated nevertheless, there could be serious consequences affecting the person violating the court order, including his or her parental responsibility and time-sharing or access with the child(ren)

With this form you must also file the following, if not already filed:

• Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) Affidavit, Florida Supreme Court Approved Family Law Form 12.902(d).

• Notice of Social Security Number, Florida Supreme Court Approved Family Law Form 12.902(j).

• Family Law Financial Affidavit, Florida Family Law Rules of Procedure Form 12.902(b) or (c). (This must be filed within 45 days if not filed at the time of the petition.)

• Child Support Guidelines Worksheet, Florida Family Law Rules of Procedure Form 12.902(e), if you are asking for a temporary modification of child support. (If you do not know the other party’s income, you may file this worksheet as soon as a copy of his or her financial affidavit has been served on you.)

Temporary Order... These family law forms contain a Temporary Order Granting/Denying Relocation, Florida Supreme Court Approved Family Law Form 12.950(f) which the judge may use. You should check with the clerk, family law intake staff, or judicial assistant to see if you need to bring it with you to the hearing. If so, you should type or print the heading, including the circuit, county, case number, division, and the parties’ names, and leave the rest blank for the judge to complete at your hearing.

Nonlawyer. Remember, a person who is NOT an attorney is called a nonlawyer. If a nonlawyer helps you fill out these forms, that person must give you a copy of a Disclosure from Nonlawyer, Florida Family Law Rules of Procedure Form 12.900(a), before he or she helps you. A nonlawyer helping you fill out these forms also must put his or her name, address, and telephone number on the bottom of the last page of every form he or she helps you complete.

INSTRUCTIONS FOR FLORIDA SUPREME COURT APPROVED FAMILY LAW FORM 12.950(g), MOTION FOR CIVIL CONTEMPT AND/OR RETURN OF CHILD(REN) (09/10)

When should this form be used?

You may use this form to ask the court to enforce a prior court order, final judgment or to request the return of a child(ren) who has been relocated in violation of Section 61.13001, Florida Statutes.

What should I do next?

To initiate a civil contempt/enforcement proceeding against a party who has relocated with a child contrary to the requirements of a prior court order, or is otherwise not complying with a prior court order concerning relocation, or in the event there has been a relocation in violation of Section 61.13001, Florida Statutes, you must file a motion with the court explaining what the party has failed to do. This form should be typed or printed in black ink. After completing this form, you should sign it before a notary public or deputy clerk. You should then file the original with the clerk of the circuit court in the county where your case was filed and keep a copy for your records.

A copy of this form must be personally served by a sheriff or private process server or mailed* or hand delivered to any other party(ies) in your case. *Please note that if notice is mailed, the court in certain circumstances may not consider mailing to be adequate notice. If you want to be sure, you should have the motion personally served. This is a technical area of the law; if you have any questions about it, you should consult a lawyer. For more information on personal service, see the instructions for Summons: Personal Service on an Individual, Florida Family Law Rules of Procedure Form 12.910(a). The court will then set a hearing. You should check with the clerk of court, judicial assistant, or family law intake staff for information on the local procedure for scheduling a hearing. Once you know the time and date of the hearing, you will need to complete Notice of Hearing on Motion for Contempt/Enforcement, Florida Supreme Court Approved Family Law Form 12.961, Florida Supreme Court Approved Family Law Form 12.921, or Order of Referral to General Magistrate, Florida Family Law Rules of Procedure Form 12.920(b), which will specify a time and place for a hearing on the issue. A copy of the form you used to schedule the hearing must be mailed or hand delivered to the other party. Again, if notice is mailed, the court in certain circumstances may not consider mailing to be adequate notice. If you want to be sure, you should have the notice personally served. This is a technical area of the law; if you have any questions about it, you should consult a lawyer. For more information on personal service, see the instructions for Summons: Personal Service on an Individual, Florida Family Law Rules of Procedure Form 12.910(a).

At the hearing, as in other civil proceedings, you, as the party seeking contempt or return of children, will have the burden of proof. The other party will have an opportunity to put on defenses, if any apply. If the judge finds the other party to be in willful contempt or in violation of Section 61.13001, Florida Statutes, the judge may order appropriate sanctions to compel compliance or return of the child(ren) by the other party, including jail, payment of attorneys’ fees, suit money, court costs, coercive or compensatory fines, and may order any other relief permitted by law.

Where can I look for more information?

Before proceeding, you should read “General Information for Self-Represented Litigants” found at the beginning of these forms. See also section 61.14, Florida Statutes and rule 12.615, Florida Family Law Rules of Procedure. Remember, a person who is NOT an attorney is called a nonlawyer. If a nonlawyer helps you fill out these forms, that person must give you a copy of Disclosure from Nonlawyer, Florida Family Law Rules of Procedure Form 12.900(a), before he or she helps you. A nonlawyer helping you fill out these forms also must put his or her name, address, and telephone number on the bottom of the last page of every form he or she helps you complete,

INSTRUCTIONS FOR FLORIDA SUPREME COURT APPROVED FAMILY LAW FORM 12.951(a), PETITION TO DISESTABLISH PATERNITY AND/OR TERMINATE CHILD SUPPORT OBLIGATION (09/10)

When should this form be used?

This form should be used by a man who wishes to disestablish paternity or terminate a child support obligation because he is not the biological father of the child(ren). The petition must be filed

• in the circuit court having jurisdiction over the child support obligation; or

• if the child support was determined administratively and has not been ratified by a court, in the circuit court in which the mother or legal guardian or custodian of the child(ren) resides; or

• if the mother or legal guardian or custodian no longer resides in the state, in the circuit court in the county in which the petitioner resides.

This form should be typed or printed in black ink. After completing the form, you should sign the form before a notary public or deputy clerk.

A copy of any judgment or order regarding paternity or child support and a copy of any scientific test results showing that you cannot be the father of the child(ren) must be attached to the petition and filed with the court.

What should I do next?

The petition must be served on the mother or legal guardian or custodian of the child(ren). If the child support obligation was determined administratively and has not been ratified by a court, the petition must also be served on the Department of Revenue.

Where can I look for more information?

Before proceeding, you should read “General Information for Self-Represented Litigants” found at the beginning of these forms. For further information, see Section 742.18, Florida Statutes.

Special notes...

Remember, a person who is NOT an attorney is called a nonlawyer. If a nonlawyer helps you fill out these forms, that person must give you a copy of Disclosure from Nonlawyer, Florida Family Law Rules of Procedure Form 12.900(a), before he or she helps you. A nonlawyer helping you fill out these forms also must put his or her name, address, and telephone number on the bottom of the last page of every form he or she helps you complete.

INSTRUCTIONS FOR FLORIDA SUPREME COURT APPROVED FAMILY LAW FORM 12.995(c), RELOCATION/LONG DISTANCE PARENTING PLAN (09/10)

When should this form be used?

A Parenting Plan is required in all cases involving time-sharing with minor child(ren), even when time-sharing is not in dispute. The Parenting Plan must be developed and agreed to by the parents and every other person entitled to access or time-sharing with the child(ren) and approved by the court. “Other Person” means an individual who is not the parent, but with whom the child resides pursuant to court order, or who has the right of access to, time-sharing with or visitation with the ehild(ren). If the parties cannot agree to a Parenting Plan or if the parents agreed to a Plan that is not approved by the court, a Parenting Plan will be established by the court with or without the use of Parenting Plan Recommendations.

This form or a similar form should be used in the development of a Parenting Plan when you are planning to relocate your or the child(ren)’s principal residence more than 50 miles from the principal place of residence:

• at the time of the last order either establishing or modifying time-sharing, or

• at the time of filing the pending action to either establish or modify time-sharing

This form should be typed or printed in black ink. If an agreement has been reached, both parties must sign the Parenting Plan and have their signatures witnessed by a notary public or deputy clerk. After completing this form, you should file the original with the clerk of the circuit court in the county where the petition was filed and keep a copy for your records. You should then refer to the instructions for your petition, answer, or answer and counterpetition concerning the procedures for setting a hearing or trial (final hearing). If an agreed Parenting Plan is not filed by the parties, the Court shall establish a Plan.

Where can I look for more information?

Before proceeding, you should read “General Information for Self-Represented Litigants” found at the beginning of these forms. The words that are in “bold underline” in these instructions are defined there. For further information, see chapter 61, Florida Statutes, and the instructions for the petition and/or answer that were filed in this case.

Special notes ...

At a minimum, the Relocation/Long Distance Parenting Plan must describe in adequate detail:

• How the parties will share and be responsible for the daily tasks associated with the upbringing of the child(ren),

• The time-sharing schedule that specifies the time that the minor child(ren) will spend with each parent and every other person entitled to access or time-sharing,

• A designation of who will be responsible for any and all forms of health care, school-related matters, including the address to be used for school-boundary determination and registration, other activities,

• The methods and technologies that the parties will use to communicate with the child(ren), and

• Any transportation arrangements related to access or time-sharing.

The best interests of the child(ren) is the primary consideration in the Parenting Plan. In creating the Parenting Plan, all circumstances between the parties, including the parties’ historic relationship, domestic violence, and other factors must be taken into consideration. Determination of the best interests of the child(ren) shall be made by evaluating all of the factors affecting the welfare and interest of the particular minor child(ren) and the circumstances of the family as listed in section 61.13(8), Florida Statutes, including, but not limited to:

• The demonstrated capacity and disposition of each party to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required;

• The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties;

• The demonstrated capacity and disposition of each party to determine, consider, and act upon the needs of the child(ren) as opposed to the needs or desires of the parent;

• The length of time the ehild(ren) has lived in a stable, satisfactory environment and the desirability of maintaining continuity;

• The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of either party with a ehild(ren);

• The moral fitness of the parties;

• The mental and physical health of the parties;

• The home, school, and community record of the child(ren);

• The reasonable preference of the children), if the court deems the child(ren) to be of sufficient intelligence, understanding, and experience to express a preference;

• The demonstrated knowledge, capacity, and disposition of each party to be informed of the circumstances of the minor child(ren), including, but not limited to, the child(ren)’s friends, teachers, medical care providers, daily activities, and favorite things;

• The demonstrated capacity and disposition of each party to provide a consistent routine for the child(ren), such as discipline, and daily schedules for homework, meals, and bedtime;

• The demonstrated capacity of each party to communicate with and keep the other part(y)ies informed of issues and activities regarding the minor child(ren), and the willingness of each party to adopt a unified front on all major issues when dealing with the child(ren);

• Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect, regardless of whether a prior or pending action relating to those issues has been brought. If the court accepts evidence of prior or pending actions regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect, the court must specifically acknowledge in writing that such evidence was considered when evaluating the best interests of the children);

• Evidence that any party has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect;

• The particular parenting tasks customarily performed by each patty and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties;

• The demonstrated capacity and disposition of each party to participate and be involved in the child(ren)’s school and extracurricular activities;

• The demonstrated capacity and disposition of each party to maintain an environment for the ehild(ren) which is free from substance abuse;

• The capacity and disposition of each party to protect the child(ren) from the ongoing litigation as demonstrated by not discussing the litigation with the child(ren), not sharing documents or electronic media related to the litigation with the child(ren), and refraining from disparaging comments about any other party to the child(ren); and

• The developmental stages and needs of the child(ren) and the demonstrated capacity and disposition of each party to meet the ehild(ren)’s developmental needs.

This standard form does not include every possible issue that may be relevant to the facts of your case. The Parenting Plan should be as detailed as possible to address the time-sharing schedule. Additional provisions should be added to address all of the relevant factors. The parties should give special consideration to the age and needs of each child.

In developing the Parenting Plan, you may wish to consult or review other materials which are available at your local library, law library or through national and state family organizations.

Remember, a person who is NOT an attorney is called a nonlawyer. If a nonlawyer helps you fill out these forms, that person must give you a copy of a Disclosure from Nonlawyer, Florida Family Law Rules of Procedure Form 12.900(a), before he or she helps you. A nonlawyer helping you fill out these forms also must put his or her name, address, and telephone number on the bottom of the last page of every form he or she helps you complete.

      . The Committee also proposed amendments to rules 12.015, 12.280, 12.400, 12.490, 12.491, 12.610, 12.650, and 12.750 to reflect the renumbering of the Florida Rules of Judicial Administration. All of these amendments have since been made, in other cases, except for the proposed amendments to rule 12.280(c) and (d) and the proposed amendment to the commentary in rule 12.650. Accordingly, we adopt those amendments here.

      . The Committee also proposed amendments to rule 12.015 (Family Law Forms) to add the new forms it was proposing to the list of “rules forms” contained in that rule. However, we are adopting the proposed forms as Florida Supreme Court Approved Family Law Forms. Accordingly, no amendment to rule 12.015 is necessary.

      . An original and nine paper copies of all comments must be filed with the Court on or before November 29, 2010, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. Electronic copies of all comments also must be filed in accordance with the Court’s administrative order in In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004).


source: Caselaw Access Project

license: Public Domain

text:
    Kenneth Louis DESSAURE, Appellant, v. STATE of Florida, Appellee. Kenneth Louis Dessaure, Appellant, Walter A. McNeil, etc., Appellee.
    Nos. SC09-393, SC09-1551.

      Supreme Court of Florida.
    Oct. 7, 2010.
    Rehearing Denied Feb. 17, 2011.

      Eric C. Pinkard of Robbins Equitas, St. Petersburg, FL, for Appellant/Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, and Stephen D. Ake, Assistant Attorney General, Tampa, FL, for Appel-lee/Respondent.
   PER CURIAM.

Kenneth Dessaure appeals an order of the trial court denying his motion to vacate his conviction for first-degree murder and sentence of death filed under Florida Rule of Criminal Procedure 3.851. He also petitions this Court for a writ of habeas corpus. For the reasons explained below, we affirm the trial court’s order denying post-conviction relief. We also deny the habeas petition.

I. FACTS AND PROCEDURAL HISTORY

Dessaure was charged with the 1999 murder of Cindy Riedweg. Dessaure v. State, 891 So.2d 455, 457 (Fla.2004). The jury found Dessaure guilty of first-degree murder. And the trial court sentenced Dessaure to death. Id. at 457.

The evidence presented at Dessaure’s trial revealed that Dessaure lived with two other people in an apartment in Oldsmar, Florida, and that Ms. Riedweg moved into the apartment next door a couple of weeks before the murder. Id. On the day of the murder, another neighbor testified that he encountered Dessaure in the parking lot, and Dessaure told him that he thought someone was dead or dying in Ms. Ried-weg’s apartment. Id. The neighbor asked Dessaure how he knew this, and Dessaure replied that he went to Ms. Riedweg’s apartment to ask for ice and looked in. Id. The neighbor said Dessaure appeared nervous and that he told Dessaure to call 911 because he wanted nothing to do with the situation. Id. Thereafter, Dessaure called 911 and reported to the operators that his next-door neighbor was dead. Id. On the 911 tape, which was played for the jury at trial, Dessaure stated that he saw Ms. Riedweg outside sunbathing, he went to her apartment to see if she had any ice, and when she did not answer the door, he went in through the unlocked door and found her lying in the middle of the floor. Id. at 458.

When the paramedics arrived, they entered Ms. Riedweg’s apartment and found her lying face down on the floor in a pool of blood. Id. She had stab wounds on her upper back and shoulders, she had no pulse, and she was not breathing. Id. After they rolled her over, they discovered that her throat had been slashed. Id. The assistant medical examiner testified that Ms. Riedweg had a total of fifty-three wounds including bruises, scrapes, pick marks, cuts, and stab wounds, and that her throat was slashed. Id. at 461. The assistant medical examiner further testified that

[tjhere were five defensive wounds to the hands, three wounds that penetrated the trachea, three that damaged and collapsed the lungs, two that cut the exterior jugular vein, one that cut the liver, one that struck a vertebra, and one that cut a spinal nerve. [The assistant medical examiner] testified that Ried-weg could have remained conscious for four to six minutes after her lungs collapsed, and she could have survived from four to ten minutes. Electrical activity could have continued for a few minutes more, perhaps ten to fifteen minutes. Multiple stab wounds of the torso and neck were the cause of death.

Id.

Other evidence established that several blood stains matching Ms. Riedweg’s DNA profile were found on Dessaure’s shorts. Id. Dessaure’s footprint was discovered in Ms. Riedweg’s kitchen, and Dessaure’s semen was found on a towel in her bathroom and on a piece of fabric from her bedroom comforter. Id.

In imposing the death sentence, the trial court found four aggravating circumstances: (1) the crime was committed while Dessaure was previously convicted of a felony and under community control; (2) Dessaure had been previously convicted of a felony involving the use or threat of violence; (3) the crime was especially heinous, atrocious, or cruel; and (4) the crime was committed during a burglary. Id. at 464. The trial court found no statutory mitigating circumstances, but noted the following nonstatutory mitigating circumstances:

(1) Dessaure was twenty-one years old (some weight); (2) Dessaure has the capacity and desire to be a loving parent (little weight); (3) Dessaure’s family life was dysfunctional while he was growing up, his parents abandoned him to be raised by his grandmother, and his older brother died in a traffic accident (some weight); (4) Dessaure has the capacity to form personal relationships (little weight); and (5) Dessaure was well behaved in court (little weight).

Id. n. 4.

This Court affirmed Dessaure’s conviction and sentence. Id. at 473. Dessaure subsequently filed a motion for postconviction relief in the trial court, which the trial court denied. Dessaure now appeals the denial of postconviction relief. Dessaure has also filed a habeas petition alleging that his appellate counsel was ineffective.

II. DESSAURE’S PENALTY PHASE CLAIMS

Dessaure claims that the trial court erred in finding that Dessaure’s trial counsel was not ineffective for (1) failing to move for a competency determination after Dessaure waived the presentation of mitigation evidence to a penalty phase jury; and (2) failing to present the mitigation testimony of Dr. Michael Maher at his Spencer hearing. Because Dessaure has failed to prove that his counsel’s performance was deficient or that the deficient performance prejudiced him, we affirm the trial court’s denial of relief. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

A. Competency Evaluation After Dessaure Waived Mitigation

Dessaure first claims that his trial counsel was ineffective for allowing Dess-aure to waive his right to a jury in the penalty phase without ordering a competency hearing. Dessaure particularly relies on language contained in the forms he signed in waiving a penalty phase jury, namely that Dessaure joined the State in seeking the death penalty. Dessaure claims that this language is “extraordinary” and proves that he should have been given a second competency hearing. We disagree.

Florida law provides that a defendant must be given a competency examination only if the court or defense counsel “has reasonable ground to believe that the defendant is not mentally competent to proceed.” Fla. R.Crim. P. 3.210(b). Once a defendant has been deemed competent, the presumption of competence continues throughout all subsequent proceedings. Boyd v. State, 910 So.2d 167, 187 (Fla.2005) (citing Durocher v. Singletary, 623 So.2d 482, 484 (Fla.1993)). A subsequent competency hearing is only required “if a bona fide question as to the defendant’s competency has been raised.” Id. (citing Hunter v. State, 660 So.2d 244, 248 (Fla.1995)). If there is “no reason to suspect that a defendant is incompetent,” then “it cannot be deficient performance if counsel does not request a competency examination.” Nixon v. State, 932 So.2d 1009, 1020 (Fla.2006) (“[T]rial counsel had no reason to request a competency determination [because defendant] had been examined by a mental health expert who did not give trial counsel any reason to delve further into competency.”).

Here, defense counsel was not ineffective for not requesting an additional competency hearing for Dessaure. Prior to the beginning of trial, Dr. Maher evaluated Dessaure for competency and concluded that Dessaure was competent to stand trial and to make penalty phase decisions, even in light of his posttraumatic stress disorder and history of suicide attempts. In addition, three of Dessaure’s defense attorneys, Messrs. Cobb, Schwartzberg, and Watts, testified at an evidentiary hearing regarding their confidence in Dessaure’s competency. Mr. Cobb testified that he could not recall anything about the results of that examination that suggested Dess-aure was not competent to stand trial and assist counsel. Mr. Schwartzberg stated that he stood by Dessaure’s decision to waive his right to a penalty phase jury because Dessaure gave a considerable amount of thought to the waiver and that all three talked to Dessaure about it. Mr. Watts testified that he consulted Dr. Maher about the penalty phase, and both believed Dessaure was competent to make waiver-type decisions. Mr. Watts further testified that he spent roughly thirty hours with Dessaure discussing the case, Dess-aure’s background, and the penalty phase, and that Dessaure consistently maintained that he did not want a penalty phase.

The record also shows that the trial judge engaged in multiple colloquies with Dessaure to confirm that his waivers were knowing and voluntary, that Dessaure understood his right to present mitigation evidence, and that his decision not to present mitigation was against his attorneys’ advice. In sum, nothing in the trial proceedings raised a bona fide question about Dessaure’s competency.

We also disagree that the language contained in the signed waiver was “extraordinary” or by itself draws Dessaure’s competency into question. The record makes clear that Dessaure’s lawyers explained to him on multiple occasions that he should reconsider his decision to waive mitigation. His attorney was prepared to present mitigation and also proffered the mitigating circumstances in court. Dessaure had many opportunities to change his mind regarding mitigation. Therefore, the waiver was nothing extraordinary, but rather a signed acknowledgement of the possible result of his actions.

Accordingly, defense counsel cannot be rendered ineffective for not requesting additional competency testing when Dess-aure waived his right to present mitigation.

B. Testimony of Dr. Maher at the Spencer Hearing

Dessaure next claims that his counsel was ineffective for not presenting the testimony of Dr. Maher at the Spencer hearing. We disagree.

The law is well-established that a competent defendant may control decisions pertaining to his defense, including the presentation of mitigation evidence, and that counsel will not be rendered ineffective for following a competent defendant’s wishes. See Hamblen v. State, 527 So.2d 800, 804 (Fla.1988) (“[I]n the final analysis, all competent defendants have a right to control them own destinies.”).

Here, Dessaure repeatedly made it clear that he did not want to present mitigation to a penalty phase jury. Yet, despite Dessaure’s insistence that he did not want a penalty phase and despite his lack of cooperation, Dessaure’s defense counsel investigated all possible mitigation in preparation for the penalty phase. Defense counsel then proffered the mitigation to the trial court, including that Dr. Maher diagnosed Dessaure with posttraumatic stress disorder arising from childhood trauma within his family and that as a result of that disorder, at the time he committed the crime, he would have had difficulty conforming his behavior to the requirements of the law and would have been under extreme emotional disturbance.

After each proffer of mitigation testimony, the trial judge asked Dessaure if he understood that this testimony could be used to establish a mitigating factor for the court to consider, and also if he understood that by not allowing counsel to present any evidence to support this proffer, the court would not consider it in sentencing. To each question, Dessaure answered that he understood. Dessaure also reaffirmed his decision not to present any evidence to support the mitigation and not to present any legal argument against any aggravating circumstance. After each proffer of mitigation, Dessaure was asked whether he was continuing to exercise his right not to present evidence of mitigation; and he insisted that he was.

Later, at his family’s prompting, Dess-aure decided that he did want to present some mitigation at his Spencer hearing. As a result, defense counsel presented the mitigation testimony of Mary Parent, the mother of Dessaure’s child, and Louise Randal, Dessaure’s grandmother. Dess-aure also testified on his own behalf and asked the judge to impose a life sentence. Thereafter, defense counsel informed the court that Dessaure waived his right to present any additional testimony or evidence, and the following exchange took place:

Court: What are you waiving now, Mr. Watts?
Defense Counsel: Judge, further evidence. I have advised Mr. Dessaure that we’ve prepared a complete penalty phase and that we’ve proffered some and then we’ve presented some evidence. We could have asked this Court for more time to present Dr. Mayer or anybody else on the witness list. And that is the purpose of the waiver.
Court: So, Mr. Dessaure, at this point you’re waiving your right to present any additional testimony or evidence at this time; is that right?
Dessaure: Yes, sir.

Then, Dessaure signed a written waiver stating that (1) he was aware that additional mitigating evidence existed and could be presented to the trial court as evidence; (2) he understood that the mitigation that was proffered was not evidence that could be weighed by the trial court; (3) his attorneys had advised him that they would be glad to call additional witnesses and present additional evidence and that the court would likely allow the presentation of evidence; and (4) “[hjaving been advised of the above, and understanding, I hereby waive presentation of additional mitigation and rely on the record as it stands, for the Court’s consideration of my sentence.”

In sum, Dessaure’s counsel was prepared and proffered all mitigation at a sentencing hearing, including the findings of Dr. Maher. When Dessaure changed his mind about presenting some mitigation at the Spencer hearing, defense counsel presented the testimony of Ms. Randal and Ms. Parent. Mr. Watts then informed the trial court that he could also present the testimony of Dr. Maher, but that Dessaure did not wish to present additional mitigation. And Dessaure signed a waiver acknowledging as much. Defense counsel cannot be ineffective for following Dess-aure’s direction under these circumstances. Accordingly, we affirm the trial court’s denial of this claim.

III. DESSAURE’S HABEAS CLAIMS

Dessaure also filed a petition for habeas corpus claiming that his appellate counsel was ineffective for (1) failing to raise on direct appeal that the jury instructions constituted fundamental error by improperly instructing the jury on felony murder and other charges not contained in the grand jury indictment; and (2) failing to raise instances of prosecutorial misconduct.

“[W]hen evaluating a claim for ineffective assistance of appellate counsel, this Court must determine: (1) whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance, and (2) whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.” Lowe v. State, 2 So.3d 21, 42 (Fla.2008) (citing Pope v. Wainwright, 496 So.2d 798, 800 (Fla.1986)). Because Dess-aure has not shown that his appellate counsel was ineffective according to these standards, we hold that he is not entitled to habeas relief.

A. Challenging the Jurg Instructions on Direct Appeal

Dessaure first claims that his appellate counsel was ineffective for not challenging the jury instruction on first-degree felony murder when the indictment charged first-degree premeditated murder. However, this Court has long held that this type of instruction is proper. See Williams v. State, 967 So.2d 735 (Fla.2007). In Williams, this Court explained:

“It is well established that an indictment which charges premeditated murder permits the State to prosecute under both the premeditated and felony murder theories.” Parker v. State, 904 So.2d 370, 382-83 (Fla.2005). We have further held that “[t]he State need not charge felony murder in an indictment in order to prosecute a defendant under alternative theories of premeditated and felony murder when the indictment charges premeditated murder.” Kearse v. State, 662 So.2d 677, 682 (Fla.1995). Similarly, this Court has “repeatedly rejected claims that it is error for a trial court to allow the State to pursue a felony murder theory when the indictment gave no notice of the theory.” Gudinas [v. State ], 693 So.2d [953, 964 (Fla.1997) ].

Williams, 967 So.2d at 758-59. “Appellate counsel cannot be deemed ineffective for failing to raise a claim which ‘would in all probability’ have been without merit or would have been proeedurally barred on direct appeal.” Mansfield v. State, 911 So.2d 1160, 1178 (Fla.2005) (quoting Williamson v. Dugger, 651 So.2d 84, 86 (Fla.1994)). Consequently, appellate counsel cannot be considered ineffective here.

Dessaure also asserts that appellate counsel was ineffective for failing to assert that the trial court erred by instructing the jury on sexual battery when it was not charged in the indictment and when there was insufficient evidence to support it. But this Court has also rejected the claim that the indictment must provide notice of the underlying felonies used to prove felony murder. See id. at 1178-79. “Because the State has no obligation to charge felony murder in the indictment, it similarly has no obligation to give notice of the underlying felonies that it will rely upon to prove felony murder.” Id. at 1179 (quoting Kearse v. State, 662 So.2d 677, 682 (Fla.1995)). And despite Dessaure’s assertion to the contrary, there was ample evidence here to support that a sexual battery occurred — the victim was found naked and face down on the floor; Dess-aure’s semen was found on a towel near the victim’s body and on her bed linens; and a witness testified that Dessaure told him he struck the victim and began having sex with her. Therefore, this claim is meritless, and counsel cannot be ineffective for not raising it on appeal.

B. Raising the Issue of Prosecutorial Misconduct

Dessaure also argues that appellate counsel should have argued that the prosecutor’s arguments during closing were improper. He specifically objects to the last comments made after the prosecutor led the jury through all the evidence in the case:

And when we started this trial he had a presumption of innocence and he only enjoyed that presumption at the start of the trial. Once the first witness was called, once the evidence began to be presented, the State chipped and chipped away at that cloak, that shield he can hide behind. And as you sit here now, he no longer enjoys that presumption because we have proven our case.

We reject this claim for two reasons. First, this claim was not preserved by trial counsel with an objection, and, in the absence of fundamental error, “appellate counsel cannot be ineffective for failing to raise claims which were not preserved due to trial counsel’s failure to object.” Brown v. State, 846 So.2d 1114, 1127 (Fla.2003) (quoting Johnson v. Singletary, 695 So.2d 263, 266 (Fla.1996)); see also Rodriguez v. State, 919 So.2d 1252, 1281-82 (Fla.2005) (“Appellate counsel is not ineffective for failing to raise issues not preserved for appeal. However, an exception is made where appellate counsel fails to raise a claim which, although not preserved at trial, represents fundamental error.” (citations omitted)). Second, this claim is merit-less.

In Easterly v. State, 22 So.3d 807 (Fla. 1st DCA 2009), the First District Court of Appeal distinguished a prosecutor’s comment which states his opinion or belief that the evidence is strong from a prosecutor’s comment which projects a statement of the law. In Easterly, the prosecutor stated during closing:

The testimonial evidence in this case, the physical evidence in this case, has not only removed the presumption of innocence from this man, it has torn it away and shown him for what he did to [K.D.] on [sic] May of 2004 when he raped her.

22 So.3d at 816. The First District held that the comment did not constitute fundamental error because it “was tied directly to the prosecutor’s perspective on the strength of the evidence.” Id. at 817; see also Dailey v. State, 965 So.2d 38, 44 (Fla.2007) (“Regarding the prosecutor’s statements concerning Dailey’s presumption of innocence, we agree with the trial court that when read in context, .the comments appear to be a statement by the prosecutor of her belief that the State satisfied its burden of proof. Therefore, counsel’s failure to object was not deficient.”).

Likewise here, the prosecutor’s comments do not constitute error because the comments were directly tied to the prosecutor’s perspective on the strength of the evidence. Specifically, after the prosecutor reviewed all of the evidence presented in the case, she stated that, although Dess-aure enjoyed the presumption of innocence at the beginning of the trial, “the State chipped and chipped away at that cloak [and] he no longer enjoys that presumption because we have proven our case.” These comments clearly reflect the prosecutor’s opinion of the evidence and are not projecting a statement of the law. Accordingly, this issue is without merit. And appellate counsel cannot be rendered ineffective for not raising an unpreserved and otherwise meritless claim on appeal.

Dessaure also argues that his appellate counsel was ineffective for failing to raise on direct appeal that the prosecution knowingly presented the false testimony of two jailhouse informants who testified about statements Dessaure made to them. This claim is meritless because Dessaure has not proven that the informants’ testimony was false or that the prosecution knew the testimony was false. See Giglio v. United States, 405 U.S. 150, 92 S.Ct. 768, 31 L.Ed.2d 104 (1972).

Accordingly, we reject this claim.

IV. CONCLUSION

Based on the foregoing, we affirm the trial court’s order denying Dessaure’s rule 3.851 motion, and we deny his habeas petition.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

      . We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.

      . “The jury, utilizing a general verdict form, found Dessaure guilty of first-degree murder as charged. It did not specify whether he was found guilty of premeditated first-degree murder, felony first-degree murder, or both. However, the jury was instructed as to both premeditated murder and felony murder." Dessaure, 891 So.2d at 457 n. 1.

      . Dessaure waived his right to a penalty phase jury.

      . Dessaure’s postconviction motion alleged: (1) his counsel was ineffective in failing to investigate and file pretrial motions; (2) his counsel was ineffective during jury selection; (3) his counsel was ineffective for failing to develop a theory of defense other than one of mere reasonable doubt; (4) his counsel was ineffective for allowing Dessaure to waive a jury at the penalty phase; (5) he was denied effective assistance of counsel during the penalty phase; (6) his due process rights were violated because the State failed to disclose exculpatory or impeaching testimony and presented false evidence, testimony, and argument to the jury; (7) his counsel was ineffective for failing to discuss his right to testify at the penalty phase; (8) execution by lethal injection is cruel and unusual punishment; (9) he should be allowed to withdraw his waiver of the right to present mitigation to a jury at the penalty phase, his waiver of argument for a life sentence, and his waiver of presentation of additional mitigation evidence; and (10) the cumulative effect of constitutional error throughout the proceedings denied him his constitutional rights.

      . Spencer v. State, 615 So.2d 688 (Fla.1993).