Child Custody in a Florida Divorce

You Must Understand the Basics of Florida custody law before starting the divorce process.

If Mom and Dad are unable to agree on child custody, a Florida divorce Judge will decide on the parenting plan.

Florida has specifics laws on how a Judge should analyze a child custody case.

If you are out of time, feel free to download our child custody worksheet. It is designed to help you brainstorm the facts that help your custody case through the law that the Judge will use to decide your case.

Determining the best interests of a child is not as simple as it sounds, especially when an outsider (the Judge) needs to make the determination.

Some of the factors Florida law requires the Judge to consider include:

What parent will facilitate a great relationship with the child and the other parent: If you are asking the Court to be the primary custodial parent, then the Court is going to see if you will make sure that your child has a great relationship with the other parent.

Division of Parental Responsibilities After the Case Ends: You may want to have the child the majority of the time, but do you need to use grandma every day to make it work? The Judge needs to see if your plan going forward will work.

Acting Upon the Child’s Needs First: Many parents fight for a parenting plan that works “best for them”. But the Judge does not care about the needs of the parent. The Judge wants to make sure the parent that has the children most of the time will put the children’s needs first.

Stable Environment for the Kids: Florida presumes that stability is a good thing for kids. Accordingly, the Court will look at the amount of time a child has lived in stable environment and address whether continuing on will be a good thing.

How do I make my case in a Florida divorce

Your testimony about what you know

The testimony of third-party witnesses like friends and family

Documents and other records that help illustrate or support your position

Commonly, we will gather up documents and records to create exhibits that will help show or illustrate how are you and your spouse have traditionally gone about parenting with your children.

For example, a common document introduced in child custody cases is a print out of text messages.  A series of text messages overtime can help show The communication between you and your spouse when it comes to working out issues and scheduling with your kids.

In other cases, looking through financial documents like bank statements might help corroborate your testimony that you shoulder the majority of the responsibilities when it comes to your children’s extra-curriculars.

Sometimes criminal history, or drug usage is a relevant issue in your case.    In that situation, we might use the court records of criminal history, or a drug screen analysis to show the issues to the court.

A social investigation or other evaluation of your situation by a professional

social investigation or child custody evaluation is a powerful tool to help determine a parenting plan that’s in the child’s best interest when the parents are really struggling to agree on an appropriate schedule

And a social investigation, a highly qualified and trained investigator is appointed by the court to help determine a parenting plan.

The investigator is most often a psychologist or a clinical social worker, family therapist, or mental health counselor who is licensed.

The investigator will interview each parent, and the children who are the subjects of the investigation, other witnesses that might have relevant information, including teachers, daycare providers, doctors, coaches, etc.

The investigator will also do criminal background checks of all the adults that are living in their respective homes of the parents or the children might resign

Sometimes, the investigators will require that one of the parties submit to a drug test.

In almost all cases, the investigator will go to the homes of the children, and see how the children in react with each parent.

At the end of the investigation, the investigator will write up a written report that will be submitted to the court for the judge to read. This is usually done within 75 days of the assignment of the case to the investigator.

An investigator go often submit to the court a complete and full proposed parenting plan or time-sharing schedule.  But in some cases, and investigator can be used to address and figure out much more narrow issues. For example, in a situation where there’s concerned that one of the parents is not providing an adequate home situation for the children, and investigator could be appointed for the Narrow purpose of checking in on the home.

In certain cases your child’s testimony

In certain cases, your child’s testimony can be placed in front of the court.

This is a relatively rare scenario, and usually only happens when the child is in the teen years, and the court makes a specific finding that the child is able to testify in a court

It is common when allowing the child to testify that the child’s testimonies given outside of the presence of the parents, in the judges chambers. This is done to protect the child from having to answer to the court regarding his parents

Who Will Be in Charge of Decision Making for My child after the Divorce?

Parental Responsibility refers to the rights and responsibilities for each parent.

We start with the presumption that shared parental responsibility is best for the children.

Sole Parental v. Shared Parental Responsibility

Shared parental responsibility gives both parents equal rights in making decisions for the children. But of course, shared parental responsibility requires two parents to work together.

Sole responsibility, on the other hand, is the Court giving the decision making to one parent. The Court has to make a specific finding that sole parental responsibility is in the best interest of the child, and state why.

The court also has the ability to order shared parental responsibility but give “ultimate decision making authority” to one parent for one or more specific issues. For example, the Court could order shared parental responsibility but give the mother the ultimate say on education decisions.

What Type of Timesharing Schedule Should I Expect?

First, understand that Florida does not have a preferred time-sharing schedule.  The law specifically requires a case by case analysis in every matter.  With that said, you have to know your Judges. And certain Judges in certain Counties tend to prefer certain schedules over others.

In Hillsborough County, the Judges are more “progressive”, and more inclined to institute a 50/50 or “rotating” custody arrangement when possible.

Pinellas County’s Judges are a bit more “traditional”, and more include to have a “minority” and a “majority” timesharing parent.  Generally speaking, Pinellas County is tougher on Dads than Hillsborough County.

And in Pasco County, there is a mixture of both, with certain Judges preferring traditional arrangements while some of the new Judges preferring rotating custody when possible.

Can You Give Me Examples of Time-sharing Schedules?

While anything is possible in child custody in Florida and its corresponding parenting plan, some common templates that parents adopt include:

Every Other Weekend: The most conservative, the minority parent has the child from Friday to Sunday (or Monday morning) on alternating weekends. This plan sometimes includes a “dinner” during the week. The benefit of this plan is it maximizes the stability of the child during the school year, as every school overnight is in the same house. The negative is it minimizes the quality time with the minority time parent.

Every Other Weekend and One Day During the Week: This hybrid plan both effectuates stability for a child while balancing the need for the child to have time with both parents. if the weekly overnight is on Friday or Monday, stability for the child is maximized.

4 days on 3 days off: The benefit of a 4 day on and 3 day off plan is the frequency, as the minority parent never goes more than four days in between time-sharing sessions.

7 days on 7 days Off (Rotating Custody): An “equal time-sharing” arrangement where both parents have an equal number of overnights during the year. A 7/7 rotating custody agreement has the benefit of minimizing the amount of exchanges for the child. A negative is that both parents will go seven days in between timesharing.

Your Child’s Wishes: Does The Judge Care?

The wishes of your child are considered by the Court in a Florida divorce, provided your child is of sufficient age and intelligence to speak up.

Each child is taken on a case by case basis. A twelve year old in one case may have her wishes taken into account, but a twelve year old in another case may not be as mature and capable to speak out.

There are a couple of ways to get the desires of your child in front of the Judge:

Ask the Court to allow your child to testify: Your lawyer can move the Court to all testimony of the child. There needs to be a hearing on the matter, and the Court will determine if exposing the child to testify is in his or her’s best interests.

Ask the Court to allow the child to speak to the Judge “in camera”: Your lawyer can also ask the Court to speak to the child, but do so outside the presence of the parents. This is called “in camera” testimony, and the parties can agree to relax the formality of traditional testimony in order to make the process less intimidating for the child.

Use a Third Party Expert to Interview the Child: Your lawyer can ask the Court to order a social investigation or custody evaluation. In these evaluations, a third party “expert” will interview both parents and any witnesses that might have information pertaining to a child custody determination. This by nature means spending lots of time talking to the children. The statements of the children will then be placed in a report that will be allowed into evidence and read by the Judge.

What If My Spouse Was Convicted of Domestic Violence?

A conviction for domestic violence in Florida changes the game.

That’s because a conviction for domestic violence creates a rebuttable presumption that the convicted parent is a detriment to the child.

This puts the spotlight on the convicted parent to prove to the Court that he or she is in fact not a detriment to the child.

If the convicted parent does not overcome the presumption, then the Court will strip that parent of any rights with the child, including child custody.

However, the convicted parent will still be on the hook for child support.

Even if there is just evidence of domestic violence, even without a conviction, the Court is still required to consider the evidence as possible detriment to the child.

In any case with a history of domestic violence, the divorce attorney and the client must game plan how to handle the evidence at the outset of the case, well in advance of any court date with the Judge. At times, the best course of action for a parent with a history of domestic violence is to be proactive in building a case that the best interest of the child is to have lots of time with the parent.

But My Spouse Will Not Follow Any Time-sharing Plan. What Can We Do?

When a parent refuses to honor a Time sharing plan, the Court MUST calculate the amount of time sharing properly denied and order make up time sharing,. The Court MAY then Order fees and costs be paid by the offending parent, Order  the offending parent to attend a parenting class, order community service, and may upon the request of the other parent modify the parent plan.

In other words, the Court has a ton of power to make sure that parents follow the parenting plan that is spelled out by the Court. We can do alot to protect a time sharing plan and  the best interests of children.

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