LEGAL GUIDE
Written by attorney Joseph Gufford III | Oct 27, 2013

How are Child Custody Rights Determined in Florida (Parental Responsibility & Timesharing)

In the 2008 legislative session, Florida made sweeping changes in its law regarding how, what was commonly referred to in the public as "custody" or "primary residence" is determined. The term "custody" is not a proper term under Florida law even though it has been used for years by the public, lawyers and judges to describe the parent with whom a child primarily lives. Because of the extensive impact of the new legislative changes, requiring a revision to not only many statutes, but numerous Supreme Court forms, as well as the likely creation of new ones, this law does not go into effect until October 1, 2008.

In its most simplistic explanation, this new law eliminates the terms "custody", "custodial" and "non-custodial parent", "primary residence", "primary residential parent" and "visitation" from Chapter 61 and all other statutes which utilize these arcane and often litigation inducing terms, in exchange for shared parenting plans and time-sharing arrangements.

However, the law goes further by expanding the considerations of shared parental responsibility and in the establishment of parenting plans, which include time-sharing schedules, which are now mandatory.

"Shared Parental Responsibility" versus "Sole Parental Responsibility"

In Florida, the Court has two initial options when deciding "parental responsibility" issues. The Court can award the parties "Shared Parental Responsibility" or it can award one of the parties "Sole Parental Responsibility". What is the difference between "Shared Parental Responsibility" and "Sole Parental Responsibility" you might ask? Under the new statute, "Sole Parental Responsibility" means a court-ordered relationship in which one parent makes decisions regarding the minor child. "Shared parental responsibility" means a court-ordered relationship in which both parents retain full parental rights and responsibilities with respect to their child and in which both parents confer with each other so that major decisions affecting the welfare of the child will be determined jointly. The default in Florida is to Shared Parental Responsibility. If the parents cannot agree on a major descision regarding the child, they take the matter up in front of the judge.

Parenting Plans must Now be Developed instead of the Court Determining Primary Residence

Generally speaking, the courts favor Shared Parental Responsibility. The terms "Primary Physical Residence" or "Primary Residential Responsibility" were in the past considered by many to be the "buzzwords" for what is generally referred to as "custody" in many other states. Those terms have now been deleted from the 2008 version of the statute in favor of the Court now developing a "Parenting Plan" for the child(ren). A "parenting plan" has certain minimum requirements.

What is Shared Parenting?

Shared parenting requires parents to confer with each other when making major decisions that affect the health, safety and welfare of the child. It does not mean 50/50 custody as the term

itself might imply. In fact, it has nothing whatsoever to do with where a child lives or the amount of time the child spends with one parent or the other. Shared parenting only means that both parents have to confer with each other when making major decisions affecting the welfare of their children and that both parents retain full parental rights and responsibilities. In short, just because parents are breaking up or divorcing each other, it does not mean that they are divorcing their children.

Sole Parental Responsibility is the Exception in Florida Law-On What Basis Can the Court Award Sole Parental Responsibility?

Sole Parental Responsibility is very much the exception in Florida and is generally only ordered in cases where one parent is "unfit" to share in the parenting of the child. It is necessary, before sole responsibility is given to one parent, that the court determine that shared responsibility would be detrimental to the child . The statutory law and the case law on the subject states that the Court must find that shared parental responsibility would be detrimental to the best interests of the child . If the court determines that shared parental responsibility would be detrimental to the child, it may order sole parental responsibility. There are also statutory reasons for a Court to Order Sole Parental Responsibility.

Rotating Custody- Another Option for The Court to Examine

Another option for parents who generally "get along" with each other is "rotating physical custody" (50/50). This type of situation has, in the past, generally not been favored by the courts and the statutes. However, rotating custody is becoming more in "vogue" at the current time. One reason disinterested parents seek 50/50 rotating custody is to reduce their child support exposure as the child support guidlines take into account the substantial time that each parent is spending with the child.

The Factors that the Court Must Consider in Developing a Parenting Plan

When the parents cannot agree on a parenting plan, the court will make the decision for them after considering the totality of the circumstances, with the overriding consideration being the child's best interests. To make that determination, the court considers the following factors:

  1. 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
  2. The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.
  3. 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.
  4. The length of time the child has lived in a stable, satisfactory environment.and the desirability of maintaining continuity.
  5. 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.
  6. The moral fitness of the parents.
  7. The mental and physical health of the parents.
  8. The home, school, and community record of the child.
  9. The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
  10. 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.
  11. 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.
  12. 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.
  13. 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
  14. 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.
  15. 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.
  16. The demonstrated capacity and disposition of each parent to participate and be involved in the child's school and extracurricular activities.
  17. The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse
  18. 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.
  19. The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child's developmental needs.
  20. Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.

In many cases, a consideration of these factors results in awarding custody to the parent who has been the child's primary caretaker during the marriage/relationship. Although this is often the child's mother, any preference for the mother strictly on a gender basis is outmoded and has been abrogated by statute and case law on the subject. In many cases, fathers have been proven to be the better parent and have been awarded primary residence.

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