MINOR SETTLEMENTS: When Kids are Involved in Litigation
In the State of Florida, many attorneys handle civil matters that involve minor children and their parent/guardian. Often attorneys who settle claims pre-suit do not want to get court approval of settlements involving a minor either for reasons of cost or expediency. In exploring the mechanics of a settlement involving a minor, the following questions should be considered:
- When does settlement on behalf of a minor require court approval?
Any settlement on behalf of a minor that exceeds $15,000.00 must receive court approval or any settlement involving multiple claimants where the aggregate of the settlement amount is $50,000.00 or greater.
Often a minor’s parents are also parties to the litigation involving their minor child. This situation frequently arises in the context of an auto accident. In such cases, a disinterested guardian ad litem should be appointed since the minor’s and the parent’s interest may be in conflict.
- Who Qualifies as a Minor Pursuant to Florida Law?
A “Minor” is defined by Florida law to be a person under 18 years of age whose disabilities have not been removed by marriage or otherwise. See, § 744.102(13), Fla. Stat. (2014).
- Who Qualifies as a Guardian Pursuant to Florida Law?
- The parents jointly are the natural guardians of their own children and of their adopted children, during minority, unless the parents’ parental rights have been terminated pursuant to Chapter 39, of the Florida Statutes. If a minor child is the subject of any proceeding under Chapter 39, the parents may act as natural guardians under this section unless the court division with jurisdiction over guardianship matters finds that it is not in the minor child’s best interests.
- If one parent dies, the surviving parent remains the sole natural guardian, even if he or she remarries. If the marriage between the parents is dissolved, the natural guardianship belongs to the parent to whom sole parental responsibility has been granted, or if the parents have been granted shared parental responsibility, both continue as natural guardians.
- If the marriage is dissolved and neither parent is given parental responsibility for the minor child, neither may act as natural guardian of the minor.
- The mother of a child born out of wedlock is the natural guardian of the minor and is entitled to primary residential care and custody of the minor unless the court enters an order stating otherwise. See, § 744.301(1), Fla. Stat. (2015).
- What happens when there is a minor settlement for less than $15,000.00?
Court approval is not required and the natural guardian is authorized to settle such claims. In a pre-suit setting, it is important to identify who the primary guardian or guardians are, so that a proper release can be obtained.
- What happens when there is a minor settlement for more than $15,000.00?
Although the natural guardian can negotiate a settlement on behalf of a minor, the negotiated settlement must be submitted to the court for approval and the court may require the appointment of a Guardian Ad Litem.
- When will a Guardian Ad Litem be appointed by the court?
- The court may appoint a guardian ad litem to represent the minor’s interest before approving a settlement of a minor’s portion of the claim in any case in which a minor has a claim for personal injury, property damage, wrongful death, or other cause of action in which the gross settlement of the claim exceeds $15,000.00. See, § 744.3025(1)(a), Fla. Stat. (2015).
- The court shall appoint a guardian ad litem to represent the minor’s interest before approving a settlement of the minor’s claim in any case in which the gross settlement involving a minor equals or exceeds $50,000.00 and affects the interest of the minor, if:
- There is no court-appointed guardian of the minor;
- The court-appointed guardian may have an interest adverse to the minor; or
- The court determines that representation of the minor’s interest is otherwise inadequate. See, § 744.3025(1)(b), Fla. Stat. (2015); Fla. Prob. R. 5.636.
- The duty of the Guardian Ad Litem is to protect the minor’s interests as described in the Florida Probate Rules. See, § 744.3025(1)(d), Fla. Stat. (2015), Fla. Prob. R. 5.636.
- Unless waived, the court shall award reasonable fees and costs to the guardian ad litem to be paid out of the gross proceeds of the settlement. See, § 744.3025(2), Fla. Stat. (2015).
In any litigation matter involving a minor, it is important to obtain competent and qualified legal counsel to explain the legal implications of a proposed settlement and to ensure that the minor’s interests are appropriately protected, thus, allowing the settlement to be effectuated as negotiated. The attorneys at DSK Law are ready to help you.