Child Custody

The most difficult part of a family law case for parties to navigate is that of timesharing, also known as visitation or child custody.  It is excruciating for many parents to think of losing time with their child due to the separation of the parents and so it becomes the most difficult decision for the parties to make, as well as for judges to make.

Parental Responsibility

There is the first tier, which is called parental responsibility.  This is who is responsible for making the major decisions regarding the raising of a child.  In Florida, it is most common for there to be Shared Parental Responsibility of a child.  Unless there is abuse or other extreme factors, both parents are responsible for raising the child, making decisions about a child’s education, medical care, and general upbringing together.

In some exceptional cases, there is also what is termed Sole Parental Responsibility.  In order to give Sole Parental Responsibility to one parent, the Court must find that it would be detrimental to the child for there to be shared parenting.  It is most often awarded in cases in which one parent has abused a child, has a history of domestic violence, or for another reason, is incapable or detrimental to the child of participating in the major decisions affecting a child.

There is also responsibility designation which requires the parties to share in the responsibility but gives Ultimate Decision Making authority to one parent or the other overall, or specific types of decisions such as education, health or religion. Sometimes people say that this is like having the veto power to make a decision but in the event of parental disagreement, one party would then make the choice.  This is also a rare designation and the Judge must find that there is a need for this tiebreaker vote to be given to one parent over another.

Timesharing and Visitation

After a Court determines the Parental Responsibility for a child, the next step is to determine what the timesharing, or visitation schedule should be.  Lately, in Florida, there have been rumors and discussion about how we are a 50/50 state or a Father’s Rights state.  This is in some ways true and in others not.

In the last ten years, Florida’s child visitation laws have changed a lot to make the focus on child custody and timesharing based on the individual needs of the child instead of a hard and fast rule.  The Florida courts are now required to consider what the best interest of the child is as opposed to standard visitation schedules.  In fact, Florida doesn’t even use the term “custody”.  It has been replaced with the term “timesharing”.

While some say that Mothers used to have the upper hand in custody matters, the Florida legislature has now erased the presumptions that used to exist regarding mothers and fathers and now courts are required to look just at the best interest of the child and not the gender of the parent when determining timesharing and parental responsibility.

Determining the Best Interest of the Child

Florida Statute outlines the factors that Courts are to consider when determining the best interest of the child.  In chapter 61, the statute outlines the thirteen factors.  Some of the big factors include the following:

  1. The capacity of each parent to cooperate, facilitate parent-child relationships, and honor time-sharing schedules: Parents must work together as a team, and help to facilitate a relationship with the child, as well as the relationship between the child and her other parent. Parents must also honor time-sharing schedules. This is a biggie and is often the primary consideration of the Court when there are hard decisions to be made about timesharing between two good parents.
  2. The anticipated division of parental responsibilities to each parent and to third parties: The courts will consider how parental responsibilities will be divided between parents, as determined by work schedules and other factors, and also which responsibilities will be delegated to third parties such as grandparents or daycares.
  3. The capacity of each parent to act in the best interest of the child: Judges strongly consider who parents prioritize their children over their own needs.  If you use the child as a pawn or put your own needs first, the Courts put a lot of weight on this.
  4. Length of time the child has lived in a stable, satisfactory environment, and desirability of maintaining continuity: Is one house stable and the other chaotic? Is one riddled with insecurity and the other stable?  These are things the Court will look at. .
  5. The moral fitness of each parent and their mental and physical health: Parents must be upstanding and able to set a good moral example for children. If mental or physical health issues exist, how does it impact the child and are these conditions well managed?
  6. Reasonable preferences of the child: If the child is considered mature enough to be capable of evaluating the situation, his preferences will be taken into account. There is no magic age for this.  Many parents will ask when their child can make the decision of who to live with.  The answer is never. However, when the child is mature enough to have a preference, those preferences could be considered.
  7. The capacity of each parent to communicate with the other parent and adopt a unified front: The ability to co-parent with the other parent is a major factor.
  8. Evidence of domestic abuse, child abuse or providing false allegations of abuse: Any evidence of domestic abuse, child abuse, or child neglect will be strongly considered, as this could compromise the child’s safety. If one parent is falsely accusing the other of abuse, that also is considered and often backfires on the accusing parent.
  9. The capacity of each parent to maintain an environment free from substance abuse: Substance abuse often leads to an unhealthy environment for children and in my experience is one of the major causes of divorce. If there is substance abuse, it will be evaluated.
  10. The capacity of each parent to protect the child from ongoing litigation: Divorce and child custody cases are traumatic for children. If a parent talks to their child about the case and puts their adult worries onto the child, this will weigh heavily against that parent.

Ultimately, if the parties cannot agree on a parenting plan that suits the best interests of the child or children then the Court will fashion one for them. It will outline the days each parent spends with the child and the holidays and summer visitation.  The parenting plan can outline anything and everything regarding decisions for a child.

In the end though, as complicated as the legal particulars can be, there are plenty of good scenarios for timesharing for children that can meet the needs and best interests of the child and the parents. Legal professionals, like a family law attorney, and parenting experts can help parents think of real-life solutions to complex parenting issues.  Anyone who finds themselves involved in a situation regarding child custody should consult with an attorney who can give them real advice on child custody and timesharing in our state.