Index for Quick Jump
In most cases at least one of the parents is surprised by the divorce. Emotions such as anger and betrayal are running high. Often extremely damaging events have taken place between the two parents such as violence, cheating that leave the relationship in tatters, and leading to the inevitable divorce. Where once there were feelings of love, intimacy, caring and alignment there is now indifference, anger, or even contempt. And yet you have children together!
Now you are wondering if that other parent could be so hurtful, so angry, so crazy, then we must be gunning towards a custody battle, right?
Us lawyers, we are trained to do battle. 90-95% of the education we recieve is about how to handle adversarial conflict, and very rare is the legal education that focuses on settlement, rehabilitation, and what happens after our work is done.
The law we have focuses on the overnights and decision making authority with the children. So you can see how the system, if your not careful, can increase conflict instead of resolving conflict. But there is a problem with that.
Social Science has done quite a bit of research looking into how divorce and parental seperation affects children. And it has come to one shocking conclusion: The most important factor to predict how well children will adjust and succeed after a divorce is the level of conflict between the parents. The more conflict between the parents, the more likely the children will be hurt.
To put it into perpective, of the top 7 factors that predict how well children will adjust after the divorce the conflict level is number one. The residential timesharing plan (ie. where the children sleep at night) is Number 7!
Yet with a few wrong turns, the parents in a divorce can end up in high end litigation over the number of nights each parent spends with the children. And this sort of drawn out litigation almost always promotes conflict between the parents by pitting them for extended periods of time as adversaries.
Of course, there are cases with impaired parents that require an intervention or litigation up front to install a safety focused parenting plan. But for the vast majority of cases, your children’s future success is directly tied to the level of conflict you have after the divorce.
An important concept to grasp from the beginning is that custody planning for your children is not a single event winner take all event but rather a mulitple “game” experience that will continue for years after your youngest is 18. Some people view a parenting plan and the Order from the Judge as a single event. You either get what you want. Or you don’t. And you have to live with the plan for ever. But that does not have to be the case.
Rather, consider that your relationship with the other parent will continue for many years to come. Ideally, you will both be there to sit together at your child’s wedding. More practically, you’ll both be able to sit in the same section at your child’s wedding.
And in the many years to come there will be countless parenting events that will take place. You will renogotiate with the other parent hundres or even thousands of times in the next couple of decades.
Consider future schooling decisions, who purchaes the prom dress, first vehicles, keeping a unified front when disciplining, extra-curriculars, vacations, and more.
The particular schedule for overnights that you have today may be completely innapropriate a few years down the road. Perhaps you have a different work schedule. Or perhaps your child’s needs have changed.
What this all means is conflict should be kept to an absolute minimum. When you go through this process, you are going to identify principles and areas of parenting agreement first, and look for ways to resolve those in a mutually beneficial way. Only then will we identify the areas of disagreement and negotiate a final resolution. Finally, we will look to install procedures into the parenting plan for solving unanticipated problems in the future.
This process starts with identifying and planning your goals for your children.
What are your goals for the children in the future. Don’t think, “To have them with me all of the time”. That is not a goal. It is a position. If you have a position, ask yourself “Why” that position matters to you. For example, you might have the following goals:
By identifying and planning goals, we can then see where each parent agrees during negotiations. We might find some fantastic alternatives for our residential schedules and decision making that is alligned with the goals.
During the marriage both Mom and and Dad worked. However, Mom carried the brunt of the child rearing activities, as Dad put in my hours at the office and utlimately, made more money as a result.
When the parents seperated, Dad genuinely wanted to maximize the time with his chidren. His planning goal was to have frequent time with the children so as to increase his bond with them. He envisioned equal time with the children or something close.
Mom wanted Dad to be involved.But Mom big goal was to minimize destructions for the children. She wanted stability and consistency. She envisioned the children spending every other weekend and maybe a dinner every week with Dad.
If Dad had begun the negotiations by taking the positiion that he wanted equal timesharing, what would happen next? Presumably Mom would be shocked, and state that she wanted every other weekend with Dad and maybe dinner.
Dad would want to support his position, so he would accuse Mom of limiting his time with the children during the intact marriage. Mom would want to support her position, so she would point out how little Dad was involved during the marriage.
Most likely, this case would impasse, ie. there would not be a settlement and the path for litigation would be set. Consider:
Dad’s worst case scenario is every other weekend. Why would he settle for his worst day in Court. Now that the positions are out there, it makes sense for Dad to go to Court.
Mom’s worst case scenario is 50/50. Why would she settle for her worst day in Court. Now that the positions are out there it makes sense for Mom to go to Court.
Of course, the parties might realize that Court is an expensive proposition and start to Budge to a settlement. Maybe they start trading a day out here or there. Ie Dad will take one less day if Mom gives one more day.
This works, but is it really ideal? Is this the best way to figure out your kids plan? And what happens with the other issues like holiday timesharing? Does this increase animosity between the parents?
There is a better approach that will increase the chances of a successful resolution and also reduce conflict between the parties.
In this example, we started the negotiation by having our client (Dad) explain what he wanted from a child planning perspective.
Dad really wanted the frequency of time with the children. Dad believed as long as he was getting frequent contact, he would be in the best position to strengthen his relationship with his children.
As it turned out, Mom really did want to maximize the stability of the children.. But she had already factored in the child support money she needed to meet her monthly budget. During the marriage, she had sacrificed her career a bit and was not making strong money. It irritated Mom that she did all that work and Dad wanted to come on and have lots of time now, while she had to pinch her pennies.
And frankly, Mom had a legitimate concern that Dad would not be able to get the kids to school in the morning. His job always required him to leave early. Was Dad going to leave late and come home early? She did not think so.
And in Florida, our child support law says that support goes up or down based on the overnights. If Dad had every other weekend, the child support to Mom would be close to $1200.00. But equal timesharing put the support number down to $500. And Mom was going to have a difficult time swinging it.
But once we figured out the true concerns, we were able to focus on a resolution that worked for both parties.
During the school week, Dad kept the childrenl overnight so that it was close to an equal timesharing, but Dad brought the children back in the morning before school to Mom’s house. Mom stayed in the marital home that was right up the road from the school. Mom helped by getting the kids ready and doing their normal morning routine. Dad of course committed as part of our agreement to getting homework done at the same time Mom had traditionally gotten that done in the evening.
Importantly, Dad agreed to calculate the child support as if the children spent the night with Mom. Dad recognized that Mom needed a little extra support; she did sacrifice a bit in her career for the children and, if she was getting them ready and sending them to school every day, she would not have any early mornings at the office.
The result was an agreement that both parties could live with. Because the parties were working in concert on the residential schedule, they really worked well on remaining aspects of the parenting plan, setting up creative procedures and rules to addrss future disagreements so they did not need to go back to attorneys and reopen the case.
Now we have intentionally focused on the child planning issues before addressing the legal issues. But the legal elements are part of a parenting plan and important nonetheless. Let’s go through them now.
This is a difficult topic because people entering the divorce process have a preconceived notion of what child custody or sole responsibility means that is completely different from the legal definition in Court.
So let’s take a second to look at and learn the two big concepts in Florida child custody: Parental Responsibility and Time sharing.
Florida divorce law recognizes that both parents are natural guardians of their minor children and have natural equal rights of child custody, care and control.
But Florida has created a court-ordered relationship called shared parental responsibility.
This relationship legally defines that both parents retain full parental rights and responsibilities regarding their children and work together to make mutual decisions about the children.
In other words, shared parental responsibility just legally ratifies what has been the case all along: that regardless of where the child sleeps at night, both parents are responsible to work together to make big decisions about the future of their children.
Now, Florida presumes that shared parental responsibility is the right situation for every situation. But in some (fortunately, very few) cases, it might be better for the children for one parent to have sole parental responsibility over all decisions related to the children.
In these rare cases, a Judge can make a specific finding that the parent’s sharing in the decision making for the children would be detrimental to their well-being, and award one of the parents sole decision making authority.
But stop for a second and really think of what that means: For a court to give one parent all of the say in making decisions for the child or children, the Judge will need to bring down his gavel in Court and make a written finding that letting both parents work together would be detrimental to the children.
And this is a difficult task!
So we know sole parental responsibility is a difficult thing to get in Court. But what about the situation when two parents are really struggling to co-parent and cannot agree on a single thing? Just that stereotypically ugly scenario where both parents are capable of making decisions for the child or children, but they just can’t seem to do it together.
In these cases, the Court may grant ultimate decision-making authority over specific aspects of the child’s welfare to one person.
So for example, if Mom and Dad just refuse to talk about where Johnny will go to school, or whether he needs braces, and it becomes detrimental to Johnny, the Court may decide to split the baby (figuratively) and let Mom make the decision on Johnny’s school and Dad decide on the braces.
Again, it is important to mention that the Court does not want to do this sort of thing, and will only do so after a full hearing on the issue.
So now that you have a good view of shared and sole parental responsibility, let’s discuss the separate and distinct issue of where the children spend their nights, or the concept of time sharing.
Rest assured that when this is all over, your divorce documents will have a specific timetable which spells out exactly which times, including overnights and holidays, your children will spend with Mom or Dad.
This is a timesharing plan. It will be found in a specific document called a parenting plan. Whether you agree on your parenting plan or a Judge makes it for you, it will spell out the custody arrangement for your children – if done correctly.
We often hear clients say that they want their residence to be the primary residence of the child. However, while we understand what our clients mean when they say this, Florida has eliminated the legal idea of a primary and secondary residence for children.
Rather, we just have a timetable spelling out X number of overnights with Mom and Y overnights with Dad. At the end of the day, the total number of overnights with both parents should equal 365 days.
And really importantly: Florida is clear that there is NOT a specific default plan that is best for all families.
That means that the traditional, old, every other weekend and one dinner with Dad during the week is not mentioned or recognized anywhere in Florida law.
On the flip side, the idea of 50/50 or “equal time sharing” is also not recognized anywhere in Florida law.
Florida law is clear: Every family is unique. Thus, every unique family deserves the time and attention it takes to craft a specific timesharing plan that is best for the children, and is also tailored to best fit the needs of each unique family.
However, it is important to understand that while Florida does not have any preconceived notions as to what parenting plan is appropriate, different Judges might and do. It is important to understand a particular Judge’s Modus Operandi when trying to negotiate a parenting plan with your spouse – and certainly before going to Court.
Now while Florida does not give us specific timesharing schedules, we do know a few basic principles that can help us out.
Whenever possible, your goal should be to reach an agreement with your spouse regarding custody – meaning that the Judge did not have to decide what the custody plan will be in your case. While Judges try very hard to understand individual situations, they lack in-depth knowledge of your family and your personal creativity in crafting the custody agreement or parenting plan.
While your goal will be to reach a divorce agreement with your spouse, recognize that it may take some time and work get there. It is common for two parents to be so far apart in agreement at the beginning of a divorce case that it feels destined that the Judge will need to decide the facts of the case. With patience, problem solving, and hard work, the vast majority of custody cases that seem contested will find themselves on a path to an agreement.
To put your case on the right path towards a custody agreement, first be open with your spouse about what your primary concerns are for the children. Do not start by taking a position at the beginning. An example of a position is, “I want 50/50 custody”, or “I want the children to be with me during the week. You can have every other weekend”.
Positions are a horrible way to negotiate settlement. In effect, you are beginning the process of negotiation by drawing a line in the sand. Your spouse will promptly do the same. And working on an agreement becomes almost impossible.
It is not surprising to see cases in contested litigation where the parents are fighting in part because they did not communicate each other’s positions well enough.
Remember, you will be dealing with the other parent until your youngest child reaches 18. It is vital to develop good communication together on parenting now before it’s too late.
If you want to have more overnights with your child than your spouse thinks is appropriate, be sure to take every opportunity you can to be with your children. Actions speak louder than words: if you have traditionally left the majority of child care duties to the other spouse, you may be able to reach an agreement faster by showing that you can handle the extra child care responsibilities.
Do not behave in a way that suggests you are trying to unnecessarily restrict the other parent’s ability to spend quality time with your children. Should the case end up in front of the Judge, the Court will be looking to see if you are encouraging a good relationship with your child and the other parent. This is a concern that is so important it is listed at the top of the child custody statute.
Even if you cannot agree on a full custody agreement early in the process, use your lawyers to see if they can create a temporary plan to bridge the gap between separation and the conclusion of the divorce. A temporary plan spells out a basic framework or custody plan that will provide both parents and children with peace of mind by knowing what to expect. Having a temporary custody plan will also give the parents a “starting place” to start working by trial and error to see what parenting plan is appropriate for both parties.
We cannot stress this enough: even if it looks like you will never have a custody agreement with your spouse, continue to take the high road and work towards an agreement. At the end of the day, only 10-20 percent of cases have to go in front of a judge for a final determination of child custody. The rest are resolved by agreement.
That said, an agreement might take many months to resolve. In fact, more than once our divorce lawyers have resolved custody agreements on the courthouse steps. But the plain truth is that nobody is ever happy when the Judge makes the final call when it comes to custody matters. A great first step on the path to co-parenting is to give it your best shot to find a win-win resolution to custody with an agreed upon child custody plan.
The beauty of Florida law is that the Judges are truly and genuinely more concerned with a parent’s good parenting actions leading up to the divorce than a parent’s bad parenting actions. The Judges want to award more timesharing to the parent that is willing to work with the other parent to benefit the children. So, by focusing on doing the right thing and seeking agreement where possible, you are actually helping to build your case for your lawyers just in case you can’t broker an agreement and need to go to Court.
The agreement you reach on custody will be boiled down in a parenting plan. While the plan will address parental responsibility and timesharing, it will also take care of other important issues like:
Information Sharing: In almost all cases both parents will have rights to access important documents like health records, school attendance records, reports cards and the like. Your custody agreement should include this.
Holidays: Will you split winter break or will you keep the regular schedule and just split Christmas? What about Easter and Thanksgiving? The Parenting Plan will establish holiday and break arrangements.
Right of First Refusal: With younger children, what happens when a parent has to leave the child in the care of a sitter? At what point should that parent have to pick up the phone to see if the other parent wants to take that time? This is the idea of the Right of First Refusal, and most parenting plans address this issue.
Communication: Should each parent have open communication with the children when they are off with the other parent? Is there enough animosity that we need to have specific times and modes of communication? Who is going to pay for the cell phone and the data plan? Most parenting plans will address communication rules.
Exchanges: If mom and dad live in different neighborhoods, how are we going to handle custody exchanges? Will one parent do all of the driving, or will it be split equally? If one parent does most of the driving, will they be compensated for doing so?
Relocation: While child custody relocation is addressed by Florida law, the parents can discuss the issue in the parenting plan.
Long distance travel: What are the ground rules for out of state or out of country travel? If one parent is moving out of state, how will the parents handle plane fare? A good custody agreement will address these issues.
Reviewing the Florida Parenting Plan Form.
In Florida, disputed child custody divorce cases are addressed inside a Courtroom and resolved by a Judge. That means the Judge will listen to evidence presented by both you and your spouse and then order a parenting plan accordingly.
To give yourself the best chance at succeeding in Court you must understand what types of evidence are allowed in Court. You will play an active role in helping your divorce lawyer present your case. After all, nobody knows your case better than you. Your testimony in Court is the perhaps the most important piece of evidence in a contested child custody dispute.
The parents testify in every contested custody dispute. What we call testifying is really broken up into three phases.
The purpose behind cross-examination is two-fold. One, the other attorney will want to highlight facts through you that benefit his or her client’s side of the case. Two, the other attorney will want to test your credibility if he or she thinks you are being dishonest or mistaken. While the thought can be intimidating, do not worry. If you proceed all the way to a contested divorce hearing, your attorney will have prepared you thoroughly for taking the stand.
When testifying, you will be focusing your story on your good parenting skills, not bashing the other parent. Judges do not like it when parents bash each other on the stand over petty matters. Of course, there are situations where the other parent’s actions are genuinely detrimental to a child, and that is important testimony.
Sometimes children develop strong ties with coaches, teachers, and other care providers who see them on a consistent basis. These witnesses can carry great weight with the court because they are often unbiased, meaning they don’t usually care if mom or dad “wins” a case, they just are reporting on what they know and usually want to see the best happen for the children.
For example, a coach could testify that while you always deliver the child on time for practice or games, the other parent is chronically late or does not bring your child to practice. This might suggest to the Court that it would be better for the child to have a few more overnights with you than dad because you are more responsible.
For another common example, a teacher could testify that the other spouse fails to pack an appropriate lunch or bring the child to school in clean clothes. For obvious reasons, this is something that a Judge would want to know.
Grandparents, uncles, aunts, and closest friends from grade school can provide testimony in Court that helps show your story to the Judge by providing insight on the parent-child relationship for each parent. When both parents work, it is not uncommon to see a grandma or grandpa who pitches in to help with childcare or to help keep the household running. These grandma or grandpas make great witnesses in contested child custody disputes.
However, remember that these witnesses are almost always biased to some degree. Your mother might be more inclined to see the case from your perspective, and Judges know this.
Photos and videos can be powerful evidence as they can memorialize events exactly as they happened.
With witnesses, memory of events can be fallible and change over time. Considering that most contested child custody cases may take months to go to trial, witnesses may forget, distort, or misrepresent events. A photo or video however can “speak for itself” and does not rely on a person’s memory. In fact, photos and videos can be useful in jogging a witness’ memory to help remember more detail in an event.
For a great example, we represented a father in a case where the mother told the court that our client was an absentee dad who never attended any of the children’s sporting events. The mother was clearly very angry with the father, and was more than willing to flat out lie to try to reduce his time with the children.
Luckily, the father was so proud of his children that he took photos and videos at all of the sporting events. We were able to create a composite exhibit for the Judge showing dated and stamped photos and videos of the children, and played them on an iPad in court. This had a powerful effect for a few reasons. First, and most importantly, we could show that dad was an active father who loved his children. Second, we were able to rebut mom’s false version of events. This in turn damaged mom’s credibility with the Judge, which was important because it cast a critical eye on mom’s entire story as presented in Court. And finally, it helped the Judge get a glimpse of the children in the case, as Judges rarely meet the children in person.
We encourage you to keep a calendar detailing overnights in your custody case if you and the other parent are separated. Creating and maintaining a detailed and accurate report of what has happened prior to Court is essential in making an Order.
Think about it: It is one thing to go into Court and tell the Judge that you have had the children “most of the time” for the last six months. It is quite another to pull out a calendar and be able to say that you had the children exactly 76% of overnights during the last 210 days. You can then explain the calendar to collaborate your narrative. And the Judge will get a feel for your attention to detail and commitment to your children as a result.
In one case we had a client do exactly this. The client even recorded how many days the other parent was more than 15 minutes late to a pick up or drop off. In a case where the other party was asking for equal timesharing, this written calendar made all of the difference. In fact, the calendar was powerful enough that we were able to negotiate a settlement with the Judge in the middle of the trial.
Texts, emails, and Facebook posts are an incredibly powerful way to present your case in front of the Judge.
In court, statements made by the other party are always admissible. That means whatever the other parent has texted or emailed you can be published to the Judge in court. This is most powerful in showing how the other party behaves when talking about the children and rebutting mistaken or dishonest testimony in front of the Judge.
Here is an example from a restraining order case:
The mother went to court and got a restraining order prohibiting the father, our client, from having any contact with her. The mother alleged that the father was stalking her, and that she was in fear that he would hurt her.
If a restraining order is granted against one parent, the Courts will often address child custody on a temporary basis because one parent is restrained from communicating with the other parent. In this case, the mother alleged that the father’s behavior was so crazy that he was a danger to the children as well. The mother was requesting 100% custody of the children, so that the father would only be able to see the kids in a supervised manner.
What the mother was really doing was trying to use the restraining order to circumvent the normal sequence of events with the divorce. If she had 100% custody with the kids through the restraining order court, she would be in a much stronger position to get the result she wanted in her divorce.
Luckily for our client, the mother still had feelings for the father, and texted him on numerous occasions asking for him to come over and see her. We were able to save digital copies of these texts and brought it to the hearing on the restraining order.
At the hearing, the mother testified that she was in great fear of the father, and needed the restraining order for protection. We were able to provide the text messages to the Judge and showed them to the mother under cross-examination. This startled the mother and destroyed her credibility. In a “he said -she said” case like this one, the credibility of both the parents was very important.
The end result was that the injunction was dismissed. The Judge found the wife to not be credible, which we used to help resolve the custody case favorably for our client in the bigger divorce case.