Child Custody in Florida
The issue of child custody is an emotionally-challenging one for couples who have decided to part ways. To help understand how courts view custody decisions, and how to prepare for your case, it is best to understand essential legal factors governing custody. It will also be useful to learn how to handle younger kids who will have to adjust to a new parenting pattern.
Florida has all but eliminated the term custody. The right term to use is ‘time sharing’ Right off the bat, the term ‘custody’ is a misnomer as far as Florida statutes go. Time Sharing is the concept where each parent gets to spent a certain designated amount of time with his or her child. It is initially left to parents to decide on a certain time sharing schedule. Obviously this is impossible in a highly contested case. If the parents cannot agree on a time schedule then ultimately the court decides for them.
The time sharing schedule decided by the court must be determined according to the child’s best interests, and in accordance with the Florida Statutes (61.13). The time sharing awarded to parents corresponds with the outdated concept concept of custody. The parent that ends up with the lion’s share of parenting time is referred to as the “majority parent.”
The “Child’s Best Interests” is the actual legal standard that every court must use. If you are headed into a contested custody case, it is always a good idea to look at the statutory factors and compare them to your personal situation. Florida statute 61.13(3) defines the factors a judge must consider.
The custody factors specific in Florida law include and are not limited to:
– The parent who is more likely to allow continuing and frequent contact with the parent who lives away (“non residential parent”). **This is probably the most important factor. In other words – if you continually interfere with the bond between the kids and the other parent, you will be the disfavored parent in the custody decision.
– The capacity of the parent to provide the child with food, medical care, clothing, and other remedial care. **This is a no-brainer to figure out. But courts will not interpret this to favor the parent with more money. The bottom line is that each parent must have the capability of taking care of their children.
– The love, affection and emotional ties that exist between child and parents. **Hopefully you are fighting for your children because of your strong bond with them.
– The parents’ moral fitness, mental health and physical health. This factor is self-explanatory. **No sex on the carpet in front of the kids. And hopefully no history of Baker Acts.
– The child’s school, home and community record. **This factor can go against a parent not adequately supervising the school involvement of their child.
– The time for which the child has lived in a satisfactory and stable environment, and if it is desirable for him/her to continue living in this environment. **This factor allows the judge to look at the history and whether that pattern has worked for the child.
– If the child is deemed to possess sufficient intelligence, experience and understanding in expressing a preference, then his/her reasonable preference will be taken into account. **This factor is completely over-rated. With rare exceptions, most judges will not listen to the preference of children.
– Evidence of child abuse or domestic violence. **This is huge. You will be at a disadvantage if you have a track record of domestic violence.
– Evidence that the party knowingly furnished false information regarding a domestic violence proceeding, to the court. **This does not frequently come into play.
– Other factors that the court may deem to be relevant. **This factor is a catch all that allows the judge to look at many different facts.
The basics of child support and visitation
Child support is a critical component of any case involving minor children. Generally, the parent who has majority time sharing receives child support, and the other parent pays child support. But there are some situations where that is not an absolute rule. Florida Statutes define a mechanism to calculate child support. The central tool is called the Child Support Guidelines Worksheet.
The Child Support Guidelines Worksheet establishes child support obligations for a specific amount. It is calculated on the basis of factors such as percentage of time sharing, income, daycare costs, uncovered medical expenses and health insurance. The primary fact used to calculate child support is the gross income of both parents. Florida Statute 61.30 (2)(a) defines gross income to include wages, salary, allowances, bonuses, commissions, tips, overtime, business income, various government payments, retirement, social security, annuity payments and pension and spousal support from a previous marriage. Passive income from stock dividends, property rents, and income from estates or trusts, may also be considered. Normally, the income from a new spouse does not become part of the calculation.
Supervised Parenting Time
There are rare cases where the judge may order no parenting time or supervised parenting time. This is an unusual outcome because Florida public policy and custody law encourage the frequent contact and participation by both parents in the lives of their children. This type of decision is usually made when the child’s safety and security in mind. Parents who are known to be alcohol abusers, drug addicts, suffer from mental disorders, have been violent towards others, or found to have neglected their children may come under the category of supervised or restricted visitation rights. On those rare occasions the judge may require evaluations of either parent or the kids by an outside professional. In extreme situations the judge may also call for intervention by child protection services.
A new Florida law gives grandparents rights to time-sharing and visitation if one of the parents is deployed or temporarily assigned to military service for a tenure exceeding 90 days. In such a situation, the parent may designate a grandparent or other family member to take up time-sharing on his/her behalf. There are other possibilities for grandparents but they are not easy options. One option is under a special Florida Statute called Temporary Custody by Extended Family Members. This provision of the law can give grandparents rights under certain specific circumstances. Another statute that allows child protective services to remove children from potentially abusive homes is another possible option for grandparent rights.
What is a parenting plan?
A parenting plan is established by the court in all cases that involve custody decisions. The plan basically specifies how the parents will look after their children after the dissolution of their marriage, or paternity case is over. The various provisions in the plan include the general and holiday time-sharing schedule, child care, education, extra-curricular activities, out-of-state/out-of-country travel, and any other provisions needed to govern the life of the children.
It is best to develop a parenting plan that is simple, practical and as well-defined as it can be. Parents with more than one child can create different custom parenting plans, use just one plan, or make some modifications to the main plan to better reflect the parenting of each of their kids. The plan can be changed at any time, with the consent of both parents. One frequent issue is that parenting plans were not designed to accommodate the inevitable changes as a child gets older. Unless the parents are able to properly communicate, that one fact tends to cause continued litigation.
Do courts favor mothers over fathers?
A look at past cases reveals that courts may prefer to grant majority time sharing to mothers, especially if the children are very young or in their ‘tender years’. Florida courts, have however, done away with the doctrine of ‘tender years’ and do not favor either parent based on gender.
Regardless of the fast-disappearing gender bias, parents seeking to win majority time sharing must understand what can prompt a judge to pronounce a decision in their favor. Of course, the factors that go into this decision are many and varied. It is important to take a strategic view of each factor to develop a plan that assures a high rate of success.
Can you improve your chances of winning majority time sharing?
Most cases are decided directly by the judge based on parent-testimony, evidence, and witnesses. It all comes down to the factors shown above. The judge will form a personal opinion of who prevails in each factor based on exactly what is presented in court.
Occassionally a court appointed expert will assist the judge in coming to a decision. The “expert” can take the form of a Guardian Ad Litem, a Social Investigator, or a Psychologist serving as a Custody Evaluator. Every Court-appointed expert will be looking for genuine feelings and intelligent decision-making from parents. They will have a favorable view of individuals who want their spouse to be a part of their children’s lives. A hostile approach towards the spouse may work against the individual’s favor. The children should lie at the heart of all the decisions made by either parent. Individuals who do not place their kids’ interests before their own feelings and prejudices risk losing majority time sharing.
Another key factor is, of course, the competence of the parents in bringing up their kids. Either the judge or the court-appointed experts will decide who is the more nurturing, composed and competent of the two parents. In making this decision, he or she will look beyond income. Experts also look at how children respond during interviews and try to determine the preference for one parent. You should be careful not to coach your children into giving your preferred answers. That is a bad strategy which can backfire on you.
While you may not like what we’re about to suggest, it helps to consider it. You cannot keep your child completely away from your spouse; you must respect his/her right to be a parent. Your spouse may have been a terrible marital partner, but may have it in him or her to be a loving father/mother. By discounting this possibility, you deprive your child of love, care and guidance. If you have watched Oscar-winning movie Kramer vs. Kramer, put yourself in the shoes of Joanna Kramer. Her workaholic and inattentive husband proved to be a wonderful father, so much so, that she decided that their son would be better off with him. The takeaway is to not isolate your child from his father/mother unless there is a strong reason to do it. There are cases where parents have been able to reach amicable decisions on time sharing despite one of them having a lifestyle that the other frowned upon. The bottom line is, both parents are important to their children’s well-being. Differences in lifestyle, opinions or values cannot justify ending or severely limiting a parent’s participation in the lives of children.
On the flip side, if you have reasonable doubt to believe that your spouse may attempt to kidnap your child, you may be able to get a emergency temporary custody order. Your attorney will obtain an enforceable decree from court that specifies the temporary terms of custody. The decree can include a court order (“injunction”) that bans your spouse from removing your child from the state. If your spouse takes your child, you can produce the injunction to the police to get their assistance in retrieving your child.
Don’t let ego get the better of you
By calmly negotiating with your spouse, you can do your bit to ensure an outcome that addresses the key objective of any custody case – being sensitive to your children’s emotional needs. Try your best to focus on common interests regardless of how horrible the atmosphere of your divorce proceedings gets. Don’t be fussy on points that don’t really make a difference in the big picture. Let go of your ego, don’t lose sight of fairness, and zero in on a workable plan that does not compromise on your children’s happiness.
Of course, this doesn’t mean that you should take whatever your spouse throws at you. If he or she is resorting to dirty tactics such as concealing income to lower child support obligations, this decision is being taken at the expense of your child’s well-being. In such a situation, you must fight aggressively to help ensure a fair outcome.
Keeping the truth away from your children
You can no longer share the same roof as your spouse. Matters have become so serious that you are considering either divorce, or a split from your significant other. But what about your kids – should you wait before talking to them? The first instinct of separating parents is to hide the painful situation from their kids as long as is possible. Some even go so far as to act like everything’s okay, when the actual reality is far from it. You should refrain from keeping your child in the dark. Why? Because, sooner or later, the truth will come out, and most certainly cause your child a lot of pain. More pain than if you had told your child about your situation right away. You are essentially breaking the trust that your child has taken for granted, and rightly so. By revealing the breakdown of your relationship at a later stage to your children, you compel them to cope with the unpleasantness of the situation, and you maximize mistrust and self-doubt. You are unknowingly teaching your children to be deceitful themselves.
In your efforts to conceal your divorce, you will no doubt end up telling many lies to your kids. So, it’s not only about being evasive or brushing off the subject but also about fibbing in the fear that the truth may be too hard to hear. By doing this, you are only confusing your children, and in some cases, you may also make them feel guilty about their role in the scheme of things. Your adolescent or teen may feel that he or she is, in some way, responsible for the breakdown of your marriage.
Having the talk
Your kids should be able to interpret the reality, and there are some reasonably good ways to break the news to them. Here are some points you may find useful:
- Come out to your kids as a couple. Even if you are barely on talking terms with your spouse, spare some time to agree on points you will discuss with your kids when you have the talk.
- There’s nothing worse than criticizing your spouse or blaming him or her for the separation, when you’re having the talk with your kids.
- State in clear terms why the two of you have decided to live apart. Adopt suitable language and reasoning – based on your children’s age – to get the message across in a way that does not cause them too much pain.
- It’s inevitable that your children may feel hurt and pained. For your part, avoid crying or becoming overly emotional.
- Tell your children that things will be different once the divorce or separation is settled. By preparing them for change early, you’ll help them settle in more easily and less painfully.
- It is important you reiterate that the divorce or separation has nothing to do with them. Kids tend to blame themselves for the situation – you must tell them that they have been wonderful and are in no way responsible.
Keep your kids’ teacher, caregiver, baby-sitter, and your close friends in the loop about your plans. They may be able to link any changes in your kids’ behavior to your situation, and inform you about the same in a timely manner.
Florida Child Custody Law
Child custody law in Florida is based on Florida Statutes, prior court decisions, and the general policy and attitudes of the courts. Custody and parenting decisions are based mainly on the “best interests of the child.” That means the entire custody decision revolves around children’s interests – not parent’s interests.
The statute specifies a list of factors that every judge must consider in a parenting case. Consideration of each factor is mandatory and court orders normally specify facts supporting each factor. A final custody order normally will show which parent prevailed for each factor.