Understanding Child Custody in Florida & Advocating for Your Child’s Best Interest
Time-Sharing, Parental Responsibility & Parenting Plans
The first thing most of us think about when they talk about divorce is dollars and cents. How much alimony one ex-spouse receives, who gets to keep the house or the car – a long list of tangibles paired with dollar signs.
However, the custody of children is often the most time-consuming and most difficult issue to resolve in divorce cases. Child custody is evaluated based on shared parental responsibility and, unfortunately, it’s often the most sensitive aspect of a divorce case. That’s why nowadays, child custody is referred to as “time-sharing.”
If you’re filing for divorce, understanding the rules of child custody, and time-sharing, in Florida is one of the most important things to do before you file.
The decision about shared parental responsibility is made based on what’s in the best interest of the child. The courts do not arbitrarily favor the mother over the father or vice versa.
Under Florida statute 61.13, determining a time-sharing arrangement starts with the creation of a parenting plan and a:
Determination of the best interests of the child shall be made by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family, 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.
NOTE: A recent change in the law added a rebuttable presumption that equal timesharing is in the best interest of the child. The new law also allows the court to consider a modification to the time-sharing schedule when a parent relocates within 50 miles of the child.
8 Common Child Custody Issues
The most common issues we see, which often require court intervention, include:
- Time-sharing– Deferral of ruling pending progress in reunification therapy
- Medical treatment–Vaccinations– Disagreement regarding whether to vaccinate child
- Relocation with child–Best interests of child
- Time-sharing– Modification to allow equal time-sharing and attendance at private school
- Contact with parent– Restrictions
- Time-sharing–Scheduling issues
- Temporary custody by extended family
- Paternity – Paternity was adjudicated as of date father acknowledged that he is legal father of minor child — Shared parental responsibility
A parenting plan in Florida outlines how children will be cared for and shared by both parents. It outlines each parent’s responsibilities, the time the child will spend with each, how the parents will make decisions about their child, and which parent is responsible for things like health care, education, activities, holidays, and more.
The plan includes the specifics of the shared custody schedule, outlining the overnights the child spends with each parent. Examples include:
- The child spends one week with one parent, the next week with the other parent, and so on.
- Every Two Weeks. The child alternates every two weeks.
- 3-4-4-3. A parent has the child for three days one week, then four days the next week. This pattern repeats.
- 2-2-5-5. A child is with one parent for two days, then the other parent for two days. Then the child is with one parent for five days, then the other parent for five days. This pattern repeats.
- 2-3-2. A child is with one parent for two days and the other parent for 3 days one week. Then, the child is with one parent for three days and the other parent for two days the following week. Weekends alternate. This pattern repeats.
As noted above, a judge may consider the child’s preference as one factor in their ruling when determining the final parenting plan. See Jeffers v McLeary. This requires the child to testify in court which can only occur with a parent’s request and court approval.
How Custody is Determined in Florida
If a child custody case is uncontested and the parents come to an agreement on all terms before filing the case, the judge will usually ratify their agreement. Most of the time a judge intervenes only when the uncontested custody agreement violates Florida custody laws or what is considered customary.
As long as the well-being of the child is not in jeopardy, the court will allow both parents to maintain frequent and continued contact with the child.
If a child custody case is contested and the parents can’t agree on one or more of the terms, a judge will make the final decision on the terms of the parenting plan.
Contested custody cases invite significant examination and scrutiny by the court to determine the final parenting plan based on what’s in the best interest of the child.
As outlined above, if you’re involved in a contested custody case, expect the judge to examine the following.
- The child’s relationship with each parent
- The child’s special needs, if applicable
- Any history of domestic violence
- The child’s preference
- The parent’s willingness to provide for the needs of their child over their own
- The parent’s conduct and any possibility of that conduct harming the child
- Education arrangements
- The child’s record with regards to home life, school, and community
- The parent’s involvement in the child’s education and activities
- The parent’s willingness and ability to foster a close, positive relationship with the child
- The parent’s willingness and ability to maintain a time-sharing schedule
- The parents’ willingness and ability to work together in the best interest of their child
In some custody cases, a guardian ad litem (GAL) is automatically appointed by the court. A GAL can also be requested and may be appointed with approval by the judge. The purpose of a GAL is to advocate for the best interests of the child only; not for the interests of the parents or any third party. Under Florida law, a GAL is granted the powers, privileges, and responsibilities to the extent necessary to advance the child’s best interests.
Child Custody Cases Must Be Filed in the Child’s Home State
A custody case is always filed in the child’s home state. For Florida to be designated the home state in a custody case, the child must have lived in the state for six consecutive months immediately prior to filing.
This law, called the Uniform Child Custody Jurisdiction Enforcement Act, was adopted by Florida in 2002. All 50 states either enforce this act or follow a similar law. Therefore, if the child hasn’t lived in any state consecutively for a long enough period of time for any state to qualify, then a court will consider which state the child is most connected with and assign a home state.
Once a judge in the child’s home state issues a ruling in a custody matter, all other states must adhere to that order and have no authority to modify or otherwise alter it. This remains to be true as long as one parent resides in the home state.
A Father’s Paternity Rights
If the divorcing parents aren’t married, or if their child was born before they were married, the court may require the father to prove he is the biological father of the child. This can be the case even if the father’s name is on the child’s birth certificate.
Without proof that the male parent is the biological father of the child, the father may not have any recognized paternity rights. An exception may be made if the mother of the child agrees that her husband is the child’s father.
In some divorce cases, the husband will prove he is not the biological father of the child. This terminates his paternity rights and any child support that he would have owed.
There are two ways to go about revoking paternity rights. The first is rule 1.540 under the Florida Rules of Civil Procedure which allow the disestablishment of paternity in cases of mistake, fraud, misrepresentation, or newly discovered evidence that could not have been discovered by due diligence prior to the case.
The second is Florida Statute 742.18 which allows a father to petition to have his paternity rights and child support obligations lifted. To proceed under this statute, the father must show the following:
- An affidavit showing new paternity evidence since the initial determination or establishment of child support.
- A paternity test taken within 90 days of the petition proving the petitioner is not the biological father.
- The petitioner has complied with all child support obligations thus far.
There is no guarantee that either means to revoke a man’s paternity rights will be accepted by the court. In cases involving paternity rights, it’s important to work with an experienced Florida child custody lawyer.
If one parent’s new spouse wants to obtain the rights of a stepparent and file for a stepparent adoption in Florida, the rights of the other biological parent must first be terminated. Stepparent adoption can be complicated. Discuss your options with a Florida child custody lawyer familiar with stepparent adoption laws and determine if the adoption is lawful.
Stepparent adoption can only proceed with consent by all parties required to consent – usually the mother as well as the child if over 12 years of age. See Carlson v. Keene. This will also include other legal guardians and the father if he has vested his legal rights
Once a stepparent adoption is finalized, it is irrevocable under the law unless proven to have been obtained under fraud, undue influence, or other illegitimate cause. But, these circumstances are very difficult to prove. Speak with a Florida child custody lawyer if you find yourself in this situation.
How to Modify the Parenting Plan Once It’s Filed
In Florida, you can modify a parenting plan if there is a substantial, material, and unanticipated change in circumstances. And, as long as the potential change is in the best interest of the child.
The parent requesting the change must prove the change was unexpected and substantial. This is usually a time to work alongside an experienced Florida child custody lawyer as proving a case for modification can be challenging.
A judge may allow for a modification for several reasons, including the ones listed below. There’s an even greater likelihood of a modification being granted if multiple factors exist, including:
- Child abuse
- Death of a parent
- If a parent commits a crime, especially if arrested for a DUI while the child is in the car
- If a parent is sent to prison
How to Enforce a Parenting Plan in Florida
Parenting plans can and should be enforced. You can bring a case against your ex-spouse if he or she wasn’t compliant with the parenting plan. Examples of the types of sanctions that can be brought against the non-compliant parent include:
- Provide extra time-sharing to compensate for any time-sharing that was missed
- Pay costs such as court and attorney fees, additional expenses incurred by the compliant parent
- Hold the non-compliant parent in contempt of court
- Modify the parenting plan
- Any other lawful sanctions deemed appropriate by the court and in the best interest of the child
If you need to enforce your parenting plan, don’t try to do so alone. Help from an experienced Florida child support attorney is the best way to make sure the parenting plan is enforced, and your custody arrangement is respected.
Enforcement of child support should always be filed in a court of law and never handled outside of the court to avoid further non-compliance.
Discuss Your Divorce and Parenting Plan with Your Children
Discussing your divorce and time-sharing arrangements with your children is one of the most important aspects of a successful parenting plan. It’s also important for the health and well-being of your children. If possible, parents should speak to their children together, be transparent in the time-sharing arrangement, and work to keep life as similar as possible.
Contact us today for a free family law case evaluation. We’ll listen to your case and explain your rights. When you’re ready to work with an experienced family law attorney to help with your child custody case, please fill out the form on our Contact Us page or give us a call at (954) 880-1302.