How Is Custody and Visitation Determined in a Divorce?
Florida and many other states no longer use the terms "custody" or "visitation."
How Timesharing and Parental Responsibility WorkFlorida and many states do not use the terms "custody" and "visitation" as in the past because they have negative connotations implying one parent gets "possession" of a child and the other parent has been reduced as though no longer a parent, but only entitled to "visit." Terms like "co-parenting" seem to be more encouraging of more equal rights and relationships between a mother and father during and after a divorce. The amount of time each parent spends with their child or children is referred to as "time-sharing." During and after a divorce, a temporary and a permanent "Parenting Plan" will allocate the time each parent gets to enjoy with their children and will allocate which decision-making authorities each parent has. In this way, the Parenting Plan will set forth the way each parent will provide for time-sharing and parental responsibility. Your Parenting Plan is a formal document either agreed upon by the parents or ordered by a court when one or more of the parties are unable or unwilling to agree how to act in the best interest of the children and require a court to make their decisions for them.
Why You Should Not Be More Concerned Over Who WinsThe law and the courts presume "shared parental responsibility" is in the best interest of the children. That gives each parent equal rights to have input as to important decisions regarding the child and it requires both parents to consult each other and agreed on decisions regarding the child. Parents can also allocate certain responsibilities to one parent and other responsibilities to the other parent. If shared parental responsibility is not in the best interest of the child, then it may award sole parental responsibility. This decision by the court means one parent has the right to make decisions without consulting the other parent. A parent may sole parental responsibility but the other parent can still have time-sharing with the other parent. Just as when shared parental responsibility must consider the best interest of the child, the courts award sole parental responsibility only when it is in the best interest of the child.
A Parenting Plan should describe how each parent will share responsibilities for parenting. It should detail the time the child will have with each parent, including overnights, for each day of the week, weekends, holidays, birthdays, winter breaks, spring break, summer break and any other times that may be relevant to the parents and the child. It will provide who makes health decisions, who is responsible for school and extracurricular activities (including which address is used for school designation). Today's Parenting Plan may also include provisions for scheduled phone calls, texting, emailing, and video conferencing such as Skype or Facetime.
It should be remembered that the courts and parents should seek to ensure each child has "frequent and continuing contact: with each parent during and after a divorce. This should encourage both parents to share the responsibilities and the rewards of being a parent.
How the Courts Determine Parental ResponsibilityWhen parents are unable to agree between themselves how to agree on parental responsibility and time-sharing, the courts much weigh a number of factors at a trial. These factors include:
o Each parent's ability to encourage a close parent-child relationship, to honor the time-sharing schedule, and to be reasonable about making changes
o How the parents plan to divide parental responsibilities
o How parents divided parental responsibilities before the divorce
o Each parent's ability to determine and act upon the needs of the child
o How long the child has lived in a stable, satisfactory environment
o The distance between the parents' homes and the travel times for the child
o The developmental stages and needs of the child
o The moral fitness of the parents
o The mental and physical health of the parents
o The home, school, and community record of the child
o The reasonable preference of a mature child
o How informed each parent is about the child's life and daily routine
o Each parent's ability to provide a consistent routine for the child
o Each parent's ability to communicate with the other parent
o Each parent's willingness to have a unified front on major issues with the child
o Each parent's ability to be involved in the child's school and extracurricular activities
o Each parent's ability to maintain an environment free from substance abuse
o Each parent's ability to protect the child from the court case, including not sharing information about the case and not speaking negatively about the other parent
o Evidence of child abuse, domestic violence, sexual violence, child abandonment, or child neglect from either parent
o Evidence that either parent has knowingly provided false information to the court regarding child abuse, or domestic violence.
Finally, when parents are considering issues of parental responsibility or timesharing, they should remember their own bad feelings toward the other party are petty and not relevant to the court's determination of the best interest of the child except that when one parent puts their acrimony against the other parent ahead of the best interest of the child. In that case, the court should consider that factor against the acrimonious party and in favor of the peace-seeking parent who can rise above selfish pettiness. The factors listed above should be thoughtfully considered by parents seeking to ensure a court enters a judgment in consideration of the children's best interests.