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Child Custody in Florida

If there are minor children born during the marriage, the trial judge is going to want to make sure they are taken care of as part of your divorce case.  In Florida that means all children born during the marriage, even if the husband may not be the biological father.

We all know that the legal standard regarding the care and raising of the minor children is best interests of the child.  That is well established in Florida law.  If you have any doubts about what to do with a child just start by asking yourself whether it is in the child’s best interests.  If no, then go back to the drawing board.

The first item to consider is parental responsibility.  Parenting should be a joint effort.  A child needs 2 parents and both parents should be deeply involved in raising of the child, even though they are divorced.  Maybe moreso.  It is the public policy of the State of Florida that each minor child should have frequent and continuing contact with both parents after the parents separate or divorce and to encourage parents to share the rights and responsibilities, and joys, of childrearing.  Sounds nice, right?  If only everyone took that to heart.

Florida law also provides that there is no presumption for or against the father of mother of the child or for or against any specific time-sharing schedule when creating or modifying the parenting plan of the child.  That means the mother no longer is presumed the better choice to have the young child live with her – the old tender age doctrine.  Or for a mother to have preference to have a daughter going into puberty live with her.  Nope, no presumptions for or against one parent over the other any longer.

Custody – who the child will live with – is an old tag that no longer applies, although it’s what the parents still refer to.  The new lingo is called time-sharing.  No longer is there a label such as primary residential parent or secondary residential parent – there was so much litigation over the labels.  No longer does one parent have custody and the other visitation.  Visitation is out.  Now it’s time-sharing.

It is always best for parents to come to an agreement on parenting and time-sharing on their own.  The judges in Florida do not want to raise your child or tell parents how to raise their child.  They will, however, if the divorcing parents will not.  The judge will make the call – cram it down your throats – and you will be stuck with the decision and not later heard to complain about it.  Best, then, to figure it out with each other.

Of course, we do not live in Utopia and parents are not always motivated by best interests of the child.  No, you see that with a child comes a responsibility.  Not just a responsibility to be a good and loving parent, but a financial obligation to feed and clothe the child, to put a roof over their head, to make sure they are healthy, have health insurance, get healthcare when needed, go to school and become productive and law abiding citizens.  Oh, if it were only that easy.  Because money is involved it is not unusual for one or both parents to try and manipulate the time-sharing to their economic advantage.  What’s that?  Well, child support follows a statutory schedule with the starting point of how much time-sharing each parent has.  If one parent has all of the time or all but 73 overnights, that parent gets full value from the schedule.  Exceed 73 overnights to the other parent and the child support goes down.  Have equal time – 50/50 – with equal incomes for both parents and it is easy to get to a ZERO child support owed.  See where this is going?

Fighting about parenting and time-sharing makes for very good attorney fees.  Sometimes it is necessary to fight.  Sometimes it is not in the child’s best interests to be with the other parent equal time or anything close.  Circumstances are different in each family.  The trial judge, when presented with a conflict about parenting and time-sharing is given a list of non exclusive factors to consider in arriving at what is in the best interests of the minor child, including but not limited to:

(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 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.

If you find yourself in a contested matter…one where there is no consensus or agreement as to how to co-parent your minor child or what custody/visitation or time-sharing arrangement is in the child’s best interests, then you must be prepared to make your case in trial.  Trial is not for the faint of heart.  Trying cases requires knowledge of substantive law, procedural law and the rules of evidence.  Sadly, our experience in family court is that many so called family lawyer are without real trial experience and have no idea what the rules of evidence are or how to apply them.  You would not want to go to trial with a lawyer who has no trial experience.  Make sure to ask before hiring one who has not been there many times.

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