The following article will provide a brief overview of the child custody laws in Florida. First of all, so you know where this information is coming from, I am a family law attorney in Florida (Sarasota County to be exact), and I regularly help clients navigate difficult issues in divorce – including child custody and support issues as well.
So this article is written by an attorney, and is designed to discuss the relevant law. However, please keep in mind that this is a general overview, not legal advice.
A Shift in Perspective
To start out, it is important to know Florida has abolished traditional child custody law in favor of flexible parenting plans. This is in effort to get parent’s away from the mentality that divorce with children is all about “winning custody.” The problem is, we often still think of this as a custody dispute. In fact, the odds are good if you are reading this article as result of a search in a search engine, you probably typed “custody” somewhere in your query.
That’s ok. I will still use the word “custody” repeatedly in this article. Just understand that when I say child custody I am generally referring to the care, control, and maintenance of a minor. I am not referring to the old legal concepts of custody, visitation, primary residential parent, and secondary residential parent.
It is also important to understand that the law has changed, and instead of am emphasis on custody, it’s all about developing a parenting plan where parents share the responsibilities of child rearing.
Which State Law Applies?
Another preliminary issue is determining which state has jurisdiction over your child custody proceeding. For some the answer will obviously be Florida, but here is a quick run down so you are at least starting out in the right state (always helpful).
It’s important to understand that all child custody proceedings in Florida are governed by the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). Basically, this Act requires all child custody litigation take place in the courts of the child’s “home state,” which is defined as the state where the child has lived with a parent for six consecutive months prior to the commencement of the proceeding (or since birth for children younger than six months).
The Central Dogma for Florida Child Custody Issues
It is very important to keep in mind that the overarching principle regarding every decision the court makes for a child is to act in “the best interest of the child.” This central dogma touches every aspect of child custody issues.
Florida law states that it is in the best interest of a child:
To ensure that each minor child has frequent and continuing contact with both parents; and
- To encourage parents to share the rights, responsibilities, and joys of child rearing.
Once again, this reflects the shift in law from a focus on “sole custody” to developing a parenting plan, where both parents are involved. Note that there is no presumption in favor of either parent in Florida either.
There are two components of child rearing upon which parents or the court must decide to create a parenting plan:
The decision-making component, called parental responsibility
We will discuss both components in turn.
Parental responsibility deals with the decision-making aspects of a the child’s life. There are two ways that parental responsibility can be divided:
Shared parental responsibility; or
- Sole parental responsibility
Shared Parental Responsibility
Shared parental responsibility means that parents have equal say in the major decisions affecting a child’s life. There is a presumption that shared parental responsibility is in the child’s best interest. Except in instances of domestic violence, dangerous or abusive behavior, etc it will be in the child’s best interests to have contact with both parents. Therefore, under normal circumstances it is very difficult to get a Florida court to award sole custody.
There are two types of parental responsibility that can be ordered under the framework of shared parental responsibility: ultimate responsibility and parallel parenting.
What this does is look at areas of parental responsibility (education, health care, and any other responsibilities relevant to the case) and determine how exactly those responsibilities are divided between parents.
The court may grant one party the ultimate responsibility over specific aspects of the child’s welfare or the court may divide those responsibilities between the parties based on the best interests of the child. An example of this is if one parent happens to be a doctor. A court may decide that the Doctor will have ultimate responsibility over the issue of the child’s healthcare.
If the court divides those responsibilities up between the parents (e.g., both parents are ultimately responsible for the child’s heath care), then that is referred to as parallel parenting.
Sole Parental Responsibility
Once again, if the court does determine that shared parental responsibility would be detrimental to the child (which only happens in rare situations), it may order sole parental responsibility.
The Concept of Time-Sharing and Developing the Parenting Plan
Parenting plans determine all aspects of a child’s life, including the physical aspects of a child’s life, such as where the child is going to spend his or her time. Parenting plans were introduced into law October 1, 2008, and the concept of time sharing replaces the old legal concepts of custody, visitation, primary residential parent, and secondary residential parent.
A parenting plan must be approved by the court, and it must describe in adequate detail how the parents will share and be responsible for:
The daily tasks associated with the upbringing of the child;
The time-sharing schedule arrangements that specify the time that the minor child will spend with each parent;
Any and all forms of health care, school-related matters, or other activities; and
The methods and technologies that the parents will use to communicate with the child.
Developing the Plan
As a preliminary part of the process, both spouses are be required to take a Parent Education and Family Stabilization course. Parent Education and Family Stabilization is a four hour parenting course that designed to education and assist divorcing parents in regard to the consequences of divorce on parents and children. This is a statutory requirement, and may not be waived.
From there you need to begin putting together your plan. Don’t worry – you don’t have to come up with this entirely on your own. If you are in the 12th Judicial Circuit of the State of Florida, the court has developed a nice resource to help the parents put the plan together. That information can be found here. If you are outside of the 12th Circuit, check with your Circuit Court. Typically these plans are put together with the help of your attorney.
Determining What the Best Interest of the Child Are
As I mentioned earlier, the “best interest of the child” is the standard used by Florida courts when establishing or modifying parental responsibility, as well as creating, developing, approving, or modifying a parental plan. This includes the time-sharing schedule. The real question is, what are the best interests of the child in the eyes of the court?
Florida courts consider the following 20 factors when making the overall determination of what is in the best interest of a child. These factors are directly from Florida Statute 61.13.
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.
The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.
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.
The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
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.
The moral fitness of the parents.
The mental and physical health of the parents.
The home, school, and community record of the child.
The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
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.
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.
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.
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.
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.
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.
The demonstrated capacity and disposition of each parent to participate and be involved in the child’s school and extracurricular activities.
The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse.
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.
The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs.
Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.
As you can see, the court considers a wide variety of factors. Factor 20 throws in the kitchen sink for good measure.
It is important to note that in assessing the factors to create a parenting plan, the court must balance the best interest of the child standard with a parent’s constitutionally protected rights. Courts may consider the parent’s lifestyle only to the extent that the conduct associated with that lifestyle jeopardizes the mental or physical well-being of the child. Therefore factors such as interracial relationships or same-sex relationships between a parent and a nonparty are not legitimate considerations.
The Florida relocation statute is weighty enough to merit it’s own article (and one will be coming soon).
In the meantime, relocation under Florida law is the relocation of a child to a principal residence more than 50 miles away from his principal place of residence at the time of the entry of the last order establishing or modifying the parenting plan or the time-sharing schedule, unless the new principal residence is fewer than 50 miles from either parent.
Naturally there are a litany of specific rules associated with the process of relocation. Please don’t hesitate to get in touch with any questions.
Modification of the Parenting Plan
The law understands that circumstances change, and therefor parenting plans may need to chance also. Parenting plans are modifiable upon:
a showing of a substantial change of circumstances;
because the child’s needs have changed, the parent’s circumstances have changed; or
The prior parenting plan has failed.
Once a substantial change of circumstances has been demonstrated the court examines all of the factors involved in making an initial determination of what is in the best interest of the child to modify the plan.
Florida Child Custody Laws – Final Thoughts
I hope this quick rundown of the basic laws involved with child custody issues here in Florida was helpful. As I am sure you have gathered, there are a lot of factors to consider in these kinds of cases, but a little knowledge and the help of a family law attorney can go a long way.
If I can ever be of assistance to you with your child custody issues, or help at all with any of your family law matters, please don’t hesitate to give me a call at (941) 882-4367. I deal with these kinds of issues on a daily basis, and am more than happy to sit down and discuss your case. However, please keep in mind that my law firm is in Sarasota County, Florida and I typically only can help clients in Sarasota, Manatee, and Charlotte counties. If your case is not in those counties, you will need a lawyer who practices in that county to assist you.