Divorces are emotional by their very nature; ending a marriage is fraught with agonizing decisions and painful positions. Money is always a contentious issue in a divorce. However, as important as money is, it doesn't hold a candle to the feelings involved with deciding which child will live with which parent. How do the laws of the State of Florida guide judges in making the child custody determination?
Under Florida law, courts determine with whom a child will live and an appropriate schedule in accordance with what is in the best interests of the child per Florida Statute 61.13 and the Uniform Child Custody and Jurisdiction Act. Florida statute 61.13 does not discuss "custody" when referring to the child's living arrangement designation, as the Legislature abolished that concept, nor is there a primary or secondary parental designation in this state. Instead, the statute refers to "time-sharing," or sharing time with each parent, which, in Florida, both parents typically enjoy. The terms currently used to describe how much time each child will spend with each parent refer to "majority time-sharing" and "equal time-sharing."
Additionally, it is an obsolete concept that a presumption for or against the father or mother of the child exists when determining a time sharing schedule. There is also no presumption for or against any specific time-sharing schedule when creating or modifying a parenting plan for child custody. In fact, it is the public policy of the State of Florida that minor children have frequent contact with both parents upon a divorce or separation, as well as to encourage parents to share in all of the elements that comprise childrearing-the joys, the rights and the responsibilities. Unless it is shown that said shared parental responsibility would be detrimental to the child (such as if one parent is convicted of a first degree or higher of domestic violence or otherwise meets criteria sufficient to terminate the parental rights of the parent and the parent doesn't rebut the presumption that detriment to the child exists), the court shall order shared parental responsibility, whether it is "majority time-sharing" or "equal time-sharing."
What is a parenting plan?
The time sharing schedule a court orders will be part of a parenting plan, which is established by the court in every action for paternity or dissolution of marriage in which there are common children. A parenting plan is a document which, in addition to setting out the time-sharing schedule that specifies the times the child will spend with each parent, also describes in detail how each parent will share responsibility for the daily tasks associated with raising the child. It also designates which parent will be responsible for health care, school-related matters, and other activities, and exactly how the parents will communicate with the child (phone, email, Skype, etc.). A court may approve or modify a parenting plan for child custody, provided that a modification of a parenting plan and time-sharing schedule requires a showing of substantial, material, and unanticipated change of circumstances. When crafting a parenting plan, the court's primary consideration should be what is in the best interests of the child. Some, but not all, of the factors the statute discusses that the court may consider when determining what is in the best interests of the child are:
- 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. Fla. Stat sec. 61.13.
It should be noted that if the court chooses an equal time-sharing plan for the parties, that does preclude the court from entering an order for child support.
Therefore, while determining a time-sharing plan for any minor children can be an emotional process, it is comforting to know that it is as fair as it can possibly be to both parties, is extremely thorough, and truly strives to come to a conclusion that is in the best interests of the child.
If you are considering a divorce or a paternity action and have minor children in common with your soon-to-be ex, consult with the skilled attorneys at Saunders Law Group to discuss your unique situation. We are here to help.
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