I see that so far, two lawyers have answered your question and one said yes and the other said no. What's a person to believe? Interestingly, I think both lawyers are right!!! One said domestic violence is a factor in deciding custody. That is true. The other lawyer said the law wants the child to have both parents, and that's true, too. My answer is child custody is a complicated thing, so complicated that the law requires every judge to analyze twenty (20) factors to help determine what is "in the best interests of the child." There is not a simple yes or no answer to your question. If you are the victim of domestic violence involved in a custody dispute the thing to do is sit down with a family law lawyer and let him/her explain all 20 factors and focus on the factors that involve domestic violence (there's more than one), and that will give you a working knowledge of what's going to happen in your case.
Florida does not generally have one parent or the other "win custody." The courts want both parents to have time with the children and, absent a problem, the parents have shared custody, with a time sharing arrangment. Domestic violence can affect that, either in terms of the time sharing, or depending on the circumstances of the violence, the normal shared custody arrangement can be overridden and one parent can get sole custody. But that is unusual.
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The answer to the question is that it depends. First, you need to know that there is civil domestic violence and there is criminal domestic violence and these are treated differently, so the answer would depend on which it is in your case.
If there is evidence of civil domestic violence or child abuse or there is an injunction for protection against domestic violence determined in a civil court, then this may be considered by the court as detrimental to the child. It is one of the factors listed in Fla. Statute §61.13(3), which the court looks at when determining what is in the best interest of the child when establishing a parenting plan, including the timesharing of the children. What is in the best interests of the child is the criteria the court uses in all decisions regarding children.
If a parent has been convicted of a misdemeanor of the first degree or higher as defined in Fla. Statute §741.28 and §775, or meets the criteria of §39.806(1)(d), then under Fla. Statute §61.13(2)(c)2) this creates a rebuttable presumption of detriment to the child. The convicted parent may rebut this presumption; however, unless this presumption is rebutted the court may not give the convicted parent shared parental responsibility, which includes timesharing or any decisions made regarding the child. If this were to occur, then the other parent would have sole parental responsibility of the child and make all decisions regarding him or her. The convicted parent may get some timesharing as the court determines would best protect from further harm the child or abused spouse.
In Florida, it is public policy that there is shared parental responsibility for the children by both of the parents. When there is separation or divorce each is encouraged to share in the rights and responsibilities of having children. There is no presumption for a certain timesharing plan or for or against the mother or father. If the parents cannot agree on a parenting plan then it will be up to the court to determine the best parenting plan based upon the child’s best interest using the factors of Fla. Statute §61.13(3).
If you would like additional information, please call us at 813.672.1900 to schedule a free initial consultation. Or for more information, please go to our website below. My best! Lynette
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