Child Custody Law

Overview of Child Custody in Florida

In 2008, the Florida legislature made broad changes in laws associated with custody. One of those changes was to eliminate the words “custody,” “custodial,” “non-custodial parent,” “primary residence,” “primary residential parent,” and “visitation.” Despite this change, the older terms are often used interchangeably with the updated terms, which include “shared parental responsibility,” “sole parental responsibility,” “majority time-sharing,” and “equal time-sharing.” Because the word “custody” has the connotation of possession or control, it was felt parental responsibility and time-sharing were more accurate descriptions of what actually happens to children when their parents divorce.

Strongly implied in the wording is the idea that bringing up children is a responsibility and parents have a mandate to uphold that responsibility throughout their child’s life. Determination of time-sharing refers to where the child will live. In the state of Florida, the Courts have two options when determining parental responsibilities. Shared parental responsibility can be awarded in which the parents share parenting duties and make decisions together. Sole parental responsibility can be awarded, meaning one parent makes the decisions regarding education, medical issues, and religious choices as well as the day-to-day decisions.

The default in the state of Florida is shared parental responsibility unless the parents are unable to agree on those major decisions, in which case a judge will decide. Ideally, the courts want both parents to be involved in their child’s upbringing and life. Along with the changes in terminology came the necessity of a cohesive parenting plan and time-sharing agreement. Absent any evidence to the contrary, the judge will assume both parents are equally interested in their child’s life. In order for time-sharing agreements to be enforceable, the parenting plan and time-sharing agreement must be extremely detailed.

Your Custody Rights vs. the Best Interests of Your Child

Both parents may have extremely strong feelings regarding who should be awarded sole parental responsibility. While it is a given that most parents want the best for their child, it can be difficult to put aside the feelings you have for your ex when determining what is in the best interests of your child. Truly focusing on your child’s best interests means all custody and visitation discussions and decisions are made with the goal of ensuring your child’s happiness, emotional and mental health and feelings of security.

Maintaining a close, loving relationship with both parents is generally in the child’s best interests, however, the practicality of this type of relationship can be challenging. Particularly among parents who had a contentious breakup, putting the past and all those feelings aside in order to truly do what is best for the child can be difficult. Try to remember the choices you and your ex make now will affect your child’s development and your relationship with the child for years and years. While the “best interests” of the child can be difficult to quantify, some factors which may determine best interests include:

• Physical health of each parent;
• The mental health of each parent;
• Religious considerations;
• Cultural considerations;
• If the child is old enough, or mature enough, the wishes of the child;
• The support and opportunity for interaction with extended family members;
• The need for the continuation of a stable home environment;
• For special needs children, the manner in which each parent addresses those needs;
• The age and sex of the child;
• The ability of the child to adjust to changes in school or community;
• The relationship of the child with siblings and other members of the household;
• One parent’s excessive discipline of the child;
• Emotional abuse directed at the child by one parent;
• Any pattern of domestic violence, and
• Evidence of parental drug, alcohol or child/sex abuse.

What a Judge Will Consider When Deciding on Parental Responsibility

If you and your child’s other parent are unable to reach a mutually acceptable arrangement regarding how parental responsibilities will be shared, a Florida judge could step in and make those decisions for you. While one or both parents may believe they are obviously the better parent, a Florida judge is not as likely to distinguish one parent as “good,” and the other as “bad.” The exception to this could be when a parent has made seriously negative life choices. These negative life choices could include the use of drugs or alcohol, incarceration, or instances of domestic violence. Even when one of these factors is present, the court may nonetheless believe contact with both parents remains in the best interests of the child. Whenever possible, it is almost always better for parents to put aside their differences and truly work toward the best interests of their child rather than letting a judge make that decision for you. If that is simply not possible, your Florida judge will likely consider the following factors when deciding on parental responsibility:

• Which parent is more likely to allow the child to have frequent, continuing contact with the other parent;
• Which parent has the ability to provide the more stable home environment;
• Which parent has the ability to provide necessary items including food, clothing and medical care;
• The moral fitness of each parent;
• The job security of each parent;
• Whether one parent travels frequently for his or her job;
• The amount of time the child has been in a stable home environment;
• The emotional bond between each parent and the child;
• The “proposed” home of each parent after the divorce;
• The child’s history, concerning home, school and community;
• The extent of each parent’s knowledge of the child’s schedule, likes, dislikes, friends, medical information and school information;
• The parenting tasks typically performed by each parent;
• The extent parenting responsibilities were and will be conducted by a third party;
• The ability of each parent to provide a consistent schedule for the child, and
• Any evidence of domestic violence, child abuse or child neglect.

The Role of Mediation in a Florida Child Custody Case

Mediation for parental responsibilities can allow parents to avoid hostile, stressful or traumatic court battles, allowing both parents to reach a common goal of the child’s best interests. In the state of Florida, all cases involving contested custody or visitation matters are referred to mandatory mediation, provided each party has legal representation and no allegations of domestic abuse exist. The goal of mediation is to change a dispute from a “win-lose,” to a “win-win,” situation in a non-adversarial process. Mediation involves a neutral third-party, who has been trained in dispute resolution, who will assist parents in resolving the issues which are causing conflict. Any issues which are not resolved through mediation will be heard by a judge. Everything said during mediation sessions is confidential and may not be repeated to anyone other than the other party or the attorneys for the respective parties. Mediation can give parents more control over the outcome of their parental responsibility issues, and, in most cases, mediated cases resolve much more quickly. There are two primary sources of mediation – private mediators and a court-provided mediator. The cost of a court-provided mediator is based on Florida Statutes and may be provided at a reduced rate for those with a combined annual income of less than $100,000. A Financial Affidavit must be filed with your case in order to establish these fees. The cost of a private mediator is normally more comparable to attorney hourly fees and can span quite a large range. But private mediators tend to be the better choice even though they are much more expensive than court-provided mediators. Private mediators tend to have more time, more expertise and are more goal-oriented. Another distinct benefit to private mediators is the fact that many of them are also family law attorneys. That gives them the experience and knowledge to suggest legally supportable solutions to the parents.  Ayo and Iken can provide you with an experienced attorney, or a Florida Supreme Court Certified Family Law mediator.

The mediator will discuss such issues with the parents as:

• Will the amount of child support be per agreement between the parties or determined by Florida Statute?
• What visitation arrangements will be in place?
• How much life or health insurance will be provided for the children by the parents?
• Which parent will pay for uncovered medical or dental expenses?
• Who will make decisions regarding education, health or religious issues?
• How will future unexpected costs be shared by the parents?

Other than mediation, you could consider Parenting Coordination, which provides a child-focused, alternative dispute-resolution process. Parenting Coordination helps the parents create a viable parenting plan and time-sharing agreement. If you are court-ordered to Parenting Coordination, the coordinator may be given approval by the court to make limited decisions.

What You Need to Know About a Florida Parenting Plan

Florida law requires parents to create a parenting plan which will meet the needs of the individual child. This plan will then be approved by the court. If the parents are unable to create a parenting plan, one will be created by the court. Parental responsibility will be addressed in the parenting plan as well as time-sharing. Whether one parent will have sole parental responsibility and the other will have time-sharing rights or whether the parents will have shared parental responsibility, will be clearly spelled out in the parenting plan. Some parents divide responsibilities or decide that one parent will have responsibility over specific areas. Unless it is clearly not in the best interests of the child, most Florida courts will prefer a decision of shared parental responsibility. The parenting plan must include, at a minimum, the following:

• Which parent will be responsible for the health care of the child, or if that responsibility will be shared;
• A clear time-sharing plan which details the time the child will spend with each parent;
• A written description of how each parent will share the daily tasks of raising the child, including provisions which account for unexpected issues which arise;
• Which parent will be primarily responsible for educational decisions, including which parent’s address will be used to determine school district;
• How and when pickups and drop-offs will take place;
• Which parent will be primarily responsible for extracurricular decisions, and
• How each parent will communicate with their child when the child is with the other parent (e-mail, text, telephone, etc).

While a parenting plan cannot possibly anticipate every occurrence, it is meant to provide a road map that makes the process of sharing responsibility easier for the parents and the child. The Florida Supreme Court has approved three generic parenting plans which parents can use as a guideline to create their own. The first parenting plan template is applicable to parents who live relatively close to one another. The second is a supervision and safety-focused plan for times when the safety of the child is an issue, and the third addresses unique factors such as a parent relocating or parents who live a significant distance from one another. While many parents strive for a true 50/50 division of parental responsibilities and time-sharing, in reality this rarely works, particularly if the parents do not live very close to one another.

When the child goes back and forth during the school week, from one parent’s home to the other, there is a high likelihood that important things (textbooks, backpacks, clothing for school sports) will be at the other parent’s home when needed. Many parents who try a true 50/50 split end up changing to a more workable plan. This could mean one parent has the children from Monday evening through Friday morning, and the other has the children from Friday after school through Monday morning when they go to school. Holidays, birthdays, and school vacations are split between the parents.

Other Issues Related to the Granting of Sole or Shared Parental Responsibility

Some parents wonder whether their decision to remarry will affect their chances for sole parental responsibility. In fact, unless the new spouse could be considered a danger to the child, the new marriage will likely not factor into the decision of parental responsibility at all. The judge will look at both parents, their lifestyles, their mental and physical health, their stability, their ability to provide a stable home life, and whether each parent is likely to encourage the children to spend time with the other parent.

Other parents wonder whether their political or religious beliefs will become an issue to the decision of parental responsibility. This question is largely dependent on whether the other parent believes those political or religious beliefs are harmful to the child—and whether the judge agrees. Courts are, understandably, hesitant to interfere with a parent’s religious or political views, so whether you are a staunch Republican or a die-hard Democrat, it is unlikely to have any impact on your case.

Custody Issues Outside of a Divorce

Although most custody issues are in relation to a divorce, there are custody issues associated with paternity, guardianship, juvenile delinquency, and termination of parental rights. The award of parental responsibility concerns parental rights, privileges, duties, and powers connected to child rearing as well as physical custody of your child, and the court takes this responsibility seriously.

Child custody law in Florida is based on Florida Statutes, prior court decisions, and the general policy and attitudes of the courts. Custody and parenting decisions are based mainly on the “best interests of the child.”  That means the entire custody decision revolves around children’s interests – not parent’s interests.

The statute specifies a list of factors that every judge must consider in a parenting case. Consideration of each factor is mandatory and court orders normally specify facts supporting each factor.   A final custody order normally will show which parent prevailed for each factor.

Here is a list of the custody factors – quoted straight from the statutes:

(a) The demonstrated capacity and disposition of each parent 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.

(b) The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.

(c) The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent.

(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.

(e) 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 the relocation of either parent with a child.

(f) The moral fitness of the parents.

(g) The mental and physical health of the parents.

(h) The home, school, and community record of the child.

(i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.

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

(k) The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, and daily schedules for homework, meals, and bedtime.

(l) The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child.

(m) 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 child.

(n) Evidence that either parent 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.

(o) The particular parenting tasks customarily performed by each parent 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.

(p) The demonstrated capacity and disposition of each parent to participate and be involved in the child’s school and extracurricular activities.

(q) The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse

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

(s) The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs.

(t) Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.

Authors note from Attorney Howard Iken: The state of Florida has eliminated terms such as “custody” and “visitation” in favor of “shared parental responsibility” and “time-sharing.” The default is shared parental responsibility unless a judge decides otherwise. The focus is on the child’s best interests, which can be determined by factors such as the physical and mental health of each parent, cultural and religious considerations, and the need for a stable home environment. If parents cannot agree, a judge may make the decision based on the best interests of the child.