Custody

Custody battles have come a long way in Florida law. Originally there were only two concepts: custody and visitation rights. Those two concepts caused expensive, extensive, and divisive litigation. As society developed and a greater awareness developed about parenting arrangements, the Florida law changed. We then developed the concept of shared parental responsibility, primary residential parenthood, and visitation rights.

As of July 1, 1997 Florida law changed again. Florida has approved the concept of rotating custody which was previously rejected by decisional law. Florida Statute 61.121 stated that the court may order rotating custody if the court finds that rotating custody will be in the best interest of the child. Florida Statute 61.052(3) stated that during any period of continuance the court may make appropriate orders including rotating custody. Other states are even more advanced than Florida in that they simply refer to the entire concept as a “parenting arrangement”.

Under shared parental responsibility, each parent has an equal say as to medical and dental issues, schooling, religious training, social upbringing, discipline, participating in school and after school activities, and a general full participation in a child’s life. Hopefully, the real concept of shared parental responsibility will find reality in your case. Florida Statute 61.13(2)(b)(2) provides as follows:

  • The court shall order that the parental responsibility for a minor child shall be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child.

Most cases are resolved by a court entering an order for shared parental responsibility. However, it is possible for the court to order shared parental responsibility and giving one parent sole parental responsibility regarding one or two specific issues. As was pointed out in Florida Statute 61.13(2)(b)(2)(a):

  • In ordering shared parental responsibility, the court may consider the expressed desires of the parents and may grant to one party the ultimate responsibility over specific aspects of the child’s welfare or may divide those responsibilities between the parties based on the best interest of the child.
  • Areas of responsibility may include primary residence, education, medical and dental care, and any other responsibilities which the court finds unique to a particular family

Again, most child custody battles are resolved by a very detailed and well drafted shared parental responsibility agreement. It may be beneficial to review the language of the agreement before entering into a “custody” battle.

Just like the law changed on July 1, 1997, the law changed again on October 1, 2008. We have eliminated the word “custody” and “visitation rights”. We have eliminated the concept of “primary residential parent” and “secondary residential parent”. We now have shared parental responsibility and a parenting plan. The purpose of the parenting plan is to provide for frequent and continuing contact of the child or children with both parents. The child is primarily going to live with both parents subject to the particular details of the plan. Some plans provide for some sort of equal timesharing arrangements while other plans provide for weekend time sharing arrangements yet other plans provide for general contact but nothing specific.

The factors that the court will consider with reference to making parenting plan decisions are contained in Florida Statute 61.13(3). For the purposes of establishing or modifying parental responsibility and creating, developing, and approving, or modifying a parenting plan, including a time-sharing schedule, which governs each parent’s relationship with his or her minor child and the relationship between each parent with regard to his or her minor child, the best interest of the child shall be the primary consideration. A determination of parental responsibility, a parenting plan or a time-sharing schedule may not be modified without showing of a substantial, material, and unanticipated change of circumstances and a determination that the modification is in the best interest of the child.

Determination of the best interest of the child shall be made by evaluating all of the factors affecting the welfare and interest of the particular minor child and the circumstances of that family, including, but not limited to:

  • (a) The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parentchild relationship, to honor the time-sharing schedule, and to be reasonable when changes are required.
  • (b) The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.
  • (c) 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.
  • (d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
  • (e) 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.
  • (f) The moral fitness of the parents.
  • (g) The mental and physical health of the parents.
  • (h) The home, school, and community record of the child.
  • (i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding and experience to express a preference.
  • (j) 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.
  • (k) 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.
  • (l) The demonstrated capacity and disposition 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.
  • (m) 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.
  • (n) Evidence that neither 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.
  • (o) 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 of which parenting responsibilities were undertaken by third parties.
  • (p) The demonstrated capacity and disposition of each parent to participate and be involved in the child’s school and extra curricular activities.
  • (q) The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse.
  • (r) The demonstrated 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.
  • (s) The development stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs.
  • (t) Any other factor that is relevant to determination of a specific parenting plan, including the time-sharing schedule.

One can see that if a case involves litigating a parenting plan, several witnesses will have to be deposed. School teachers, rabbis, ministers, neighbors, friends, relatives, and perhaps professional psychologists or psychiatrists will be involved in giving testimony.

One can see that if a case involves litigating a parenting plan, several witnesses will have to be deposed. School teachers, rabbis, ministers, neighbors, friends, relatives, and perhaps professional psychologists or psychiatrists will be involved in giving testimony

Some parenting plan are very specific such as the child or children will be with one parent every Wednesday, every other weekend, father’s day or mother’s day, sometime during the summer, dividing the holidays, dividing school vacations, and the like. Other plans are very general such as the parties will have frequent and continuing contact with their child or children but nothing specific. If you think that contact is going to be somewhat difficult now or in the future it is always best to have a specific parenting plan to fall back on.

Family law practitioners handle cases on an individual basis. However, I did want to share with you a general outline that may be beneficial to you.

Very truly yours, STEPHEN H. BUTTER

About the Author

Stephen Butter