This Florida Child Custody Law Overview explains what you need to know about what will happen with your children in your divorce. Florida Child Support Law is covered separately in our Florida Child Support Law Overview.
The issue of “who gets the children” can be one of the most sensitive and awful aspects of divorce. Although Florida Child Custody Law is in theory uniform, the application of the law can widely within Florida as judges typically have great “discretion” to make decisions about children. A thorough explanation of the strategy for handling contested custody litigation, especially parental alienation cases, would fill a book of its own.
If you have or anticipate a seriously contested issue involving children (meaning you are being kept from a child or your spouse has serious flaws that make you believe they should be kept from a child then you need to make it a priority to consult with an experienced divorce lawyer familiar with how your local judges approach child custody cases now.
Do not delay with this. Judges seem to have a habit of leaving parents in the situation created by the decisions they made before becoming heavily entrenched in custody litigation. For this reason, it is critical that your early decisions are the right decisions and are consistent with the best interests of your children and your long term goals.
Common Views Taken By Judges
Scary warnings aside, for most people, there is nothing substantial to worry about when it comes to the children. I regularly tell clients in Palm Beach County, Florida, where I practice, that our many of our local judges start from the position that each parent should have an equal amount of time with their children, if they are a safe person and actually have the interest of being with their children half the time.
Many judges have had experience in juvenile or dependency court before they are made a divorce court judge. After seeing what happens to children who don’t have any parents, these judges are usually starting from the position that both parents should spend equal time with their children, and be equally involved in parenting decisions, unless there is a really good reason for this to not be the case.
In many cases, at least here in Palm Beach County, the “worst case” scenario for a parent who has proven to be a safe person and productive member of society, is for the judge to implement a “model” schedule that has the children spending days and nights with both parents during the week, and dividing all major holidays in an equal manner that rotates between the parents each year. This “worst case” scenario schedule works out to one parent having about 62% of the time and the other parent having about 38% of the time with the children.
The fact that this “worst case” scenario often leaves the parent receiving the “38% of the time” portion of the schedule with more quality time with their children than they had during the marriage, and more time than they can realistically manage with a busy work schedule, usually operates to get most parents to agree to issues involving their children and keep them out of court.
Many clients who consult with me and have children usually ask me some variation of “who is going to get custody of the kids?” I end up explaining that in Florida, the term “custody” is outdated and almost never applicable. In 2008, Florida’s laws were changed to eliminate the term “custody” from most statutes.
Now, here in the “Sunshine State,” the issues to decide in a child custody case are “timesharing” and “parental responsibility.” “Timesharing,” is the term used to describe how parents share time with the children, and “parental responsibility” is the term used to describe how parents make decisions for the children. Many other jurisdictions have made similar changes to their laws, or have at least legally “neutered” the legal effect of “having custody” to the point of being meaningless.
Timesharing and Presumptions:
As it relates to “timesharing,” in Florida (and in many other jurisdictions) it is now the case that there is no presumption that a child should spend more time with their mother or with their father.
It used to be the case that a legal doctrine called the “tender years doctrine” applied and dictated that children should spend their early years primarily with their mother. However, it has been over twenty-five years now since the Florida Supreme Court pronounced the “tender years doctrine” as “dead.” As a result, in theory, judges should set timesharing/visitation schedules based on evaluations of the decision-making criteria listed in the custody laws (explained at the end of this section below) without regard to the sex of the parent.
The practical effect of all of this is that most judges are predisposed to leaving similarly situated parents with an equal amount of timesharing/visitation with their children after a divorce. This means that if both spouses are capable parents and have similar availability to be with the children, many judges are likely to implement an equal timesharing/visitation schedule.
This, of course, varies between judges, and in my experience, results in newer judges being almost dead set on putting in place a 50-50 timesharing/visitation schedule, and more experienced judges who took the bench when the “tender years doctrine” was more common sometimes are more prone to the belief that children should spend more time with their mother.
Further, if one parent has been a stay-at-home parent during the marriage while the other parent has been working 80 hours a week, judges are likely to fashion a different schedule (in Palm Beach County, this is likely to be the 62%/38% “model schedule” described above). Also, as common sense would dictate, this all changes if one parent has a serious substance abuse problem, mental health issue, or other issues that makes it unsafe for them to be around the children. If danger to the children is proven, judges can and will limit or eliminate the problem parent’s access to the children.
The issue of “parental responsibility,” covers how parents make educational, health, religious, and other important decisions for their children. As with timesharing, in Florida and in many other jurisdictions, the law is usually set up for these decisions to be shared equally, or close to equally. As an example, in Florida, the law is set up to presume that parents should, by default, have what is called “shared parental responsibility.” This means that the parents are supposed to be jointly responsible for making all important decisions for their children (I’m talking about decisions on important, long lasting issues and not decisions on day-to-day issues like what a child eats for breakfast). In Florida, judges are required to order “shared parental responsibility,” unless there is evidence that doing so will be detrimental to the child, which is extremely hard to prove.
The bottom line to all of this is, in many jurisdictions, if you and your spouse are generally good, safe adults, who have been historically involved with your children, then after the divorce, you are likely going to have an equal say in the important decisions for the children, and will probably have equal or close to equal amount of time with them.
That said, you need to speak to a lawyer immediately if your spouse is jerking you around with the children, has threatened to cause problems involving the children, or is unsafe to be around the children. If there is an anticipated complication involving your relationship with your children, you need to make sure it is handled correctly from the very beginning, or you will jeopardize your children’s upbringing and the quality of your lifetime relationship with them. This might be the only thing left that is really important to you after your marriage is over, especially in the future when the divorce is all but forgotten.
For those who are interested, I have listed below the major factors below that judges applying Florida Child Custody Law are required to consider when deciding “timesharing” and “parental responsibility” issues for children.
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.