Custody versus Shared Child Custody in Florida: Understanding the Legal Terminology
Getting sole child custody in Florida is an uphill battle in all but the most serious of situations. Florida custody law starts with the presumption that it is in the best interests of children to have substantial quality time with each parent. A custodial parent seeking sole custody rights is asking the court to restrict or deny the visitation rights of one parent. As such, the parent must show that the restriction is necessary to protect the child.
Getting Sole Child Custody in Florida is an Extreme Remedy
In most cases, the court will order specific conditions that the parent must meet in order to come back to court to address custody issue. This puts the burden on the questionable parent to prove themselves by doing certain acts. If the parent proves himself or herself, then the court will allow them to come back and ask for regular timesharing again.
For example, consider the case of the drug-addicted parent. The other parent has shown the court that the drug-addicted parent is a danger to the child welfare and emotional well-being, and that parental rights should be restricted. The court agrees, ordering sole custody of the child with the non-drug addicted parent.
The court will go further and list what the drug-addicted parent can do to prove himself or herself to the court. The court will (obviously) order the drug-addicted parent to submit to random drug screenings for a substantial period of time, generally between six and 18 months.
The court will also often order counseling and treatment for an extended period of time. This way, not only is the drug parent proving him or herself by attending treatment, but there is a third-party professional counsel who can report to the court if needed to advise on how well the parent has done and if the parent is ready to participate in custody agreement.
In other cases, the court can order temporary suspension of timesharing for a period of time in order to promote a positive impact on the child.
In one example from a Hillsborough court, the trial judge found that the mother was alienating the children from the father. The children were both teenagers. The father provided expert testimony that the alienation could best be solved by a temporary suspension of the mother’s timesharing. The trial judge listened to the expert, suspended the mother’s timesharing, and gave the father sole legal and physical custody and child support for a period of three months. At the end of the three months, the judge set a hearing to readdress the situation.
While extreme, this example does show that judges have a wide discretion to restrict or deny timesharing. They key is to recognize the judge does have to back up their decision with a written custody order or else the order will be violating the child custody law. Therefore, the party requesting sole parental responsibility needs to build a strong case.
What To Show the Judge
The parent requesting sole custody must show that it is in the best interest of the child is to severely minimize the amount of time the other parent has with him or her. The burden of proving this falls on the requesting parent.
In general, these cases fall in one of four types of categories: drug abuse, domestic violence, mental health issues, or child abuse and neglect.
Drug abuse and addiction
A parent has a good shot at getting 100% timesharing of a child when to do so will protect the kids from a drug-addicted parent. A parent suffering from drug addiction will often be unable to fully care for themselves, let alone another child. And there’s a common understanding among the courts that an addict should be focusing on themselves and getting better before trying to spend substantial time with their child(ren).
Proving drug or alcohol addiction or abuse can be done in a couple of ways. First and foremost, the parent with a good faith basis can request that the court order a hair follicle test or urine test of another parent in a contested custody case. The divorce attorney will file a written motion citing the relevant law that allows this type of relief and set a hearing in front of the judge.
In some cases where a guardian ad litem or child custody arrangement evaluator is appointed to help determine child custody, the guardian can show up with the drug test and request the non-custodial parent to submit. This puts the parent in a sticky scenario. The parent could argue that privacy concerns should outweigh the need for a drug test, but the guardian or child custody evaluator has a lot of say in what the final parenting plan will be for the children. A guardian or custody evaluator will only ask for a drug test if they think it’s warranted. So if a parent denies and refuses to take a drug test, it won’t look good at the end of the day in the child well-being and custody report.
Details of the drug test: there are independent labs in every city in Florida that can take a sample of urine and either a three-panel or five-panel hair follicle test. They will take a long enough piece of hair, and if the parent has shaved or cut their hair short, they can even take a piece of arm hair to run the test. Some of these labs will do the test on-site and other labs will ship the hair or the urine out to another facility. The results are then sent usually to the attorneys to review.
Some substances, like alcohol, can be much more difficult to test with hair follicle testing. However, the technology continues to improve, and at this point, hair follicle test for alcohol abuse can show whether the user is a mild, medium, or heavy abuser of alcohol.
When trying to prove drug abuse or addiction, the requesting parent can also use a private investigator. In some cases, these investigators can interview witnesses to learn more about the parent’s behavior. They can use video to record a parent if a parent might be engaging in illicit behavior in a public place. And they can also use trash pools, where they go through the trash that a parent leaves out at the curb on trash day. If a trash pull shows that a single parent who is now living by themselves goes through four bottles of wine every two or three days, that sort of indirect evidence can help support the idea that that parent is a substance abuser.
Domestic Violence or Physical Abuse
Any abusive parents may find themselves with their timesharing restricted or denied.
Florida courts recognize domestic violence not just of the abused, but often the children of the abused. The courts can restrict joint legal custody if there is domestic abuse in a relationship between two parents if the children witnessed or were otherwise around during the abuse.
In Florida, if one parent is convicted of domestic battery or other domestic crimes that are a first-degree or higher offense, the courts will presume that the convicted parent shouldn’t have any joint custody with the children and make the convicted parent overcome that presumption with evidence.
Proving that the domestic violence is an issue in the case that requires restricting timesharing is a little more difficult than proving drug abuse cases, as there is not a scientific test that proves physical abuse. Rather, physical abuse is often proven through the testimony of the abused spouse, testimony of any third parties that witnessed the abuse, and corroborating evidence like pictures of bruises and other injuries. While these cases can certainly be proven to a judge, it is important to recognize the “he said, she said” nature of winning these cases.
For example, in a recent domestic violence case where joint legal custody was an issue, we represented a battered spouse and the husband completely denied ever harming her.
Our client was certainly believable but had a difficult time testifying and telling the judge her story because of the emotional complexity of the case. At one point, the husband was arrested for domestic violence when cops came on the scene and saw the wife with scratch marks and bruises. However, the state attorney ultimately dropped these charges.
We were able to boost her credibility in court by bringing in the investigating officer who made the arrest. Even though the state attorney had dropped the charges, the arresting officer had written a police report and noted visually seeing injuries on the spouse. He then was able to testify in court that he saw these injuries on the spouse when he arrived on scene, along with our client shaking, being nervous, and other observations that suggested that the husband was physically violent with the wife. The husband also had a knack for apologizing after committing acts of violence on the wife. The wife was able to gather various text messages and Facebook messages that showed the husband been apologizing for his ill actions.
The judge was able to find that domestic violence was occurring in this case and restrict physical custody with the father until such time as the father had taken classes and submitted to further treatment of the anger issues he was having. While it wasn’t the goal of the court to keep the father away from his child for long periods of time, the court recognized that the father had problems that had to be resolved if he was going to be capable of exercising time with this child in a manner that was positive and beneficial to the child.
Much less common, we have cases where a parent’s mental health is at issue to the extent that timesharing should be limited and restricted.
For example, consider the case where a parent is suffering from schizophrenia, severe depression, or another mental illness that is making it difficult for the parent to take care of themselves, let alone another child. In these cases, it is often that parent’s mental health issues that have facilitated the divorce, usually with a parent filing for divorce in no small part to protect the children from the other parent. These cases often have priority status, the fear that perhaps one parent might do something to harm the child or flee with the child.
Proof in these cases often starts with mental health records. When necessary, the court can override any input concerns and order the disclosure of mental health records of a parent of a contested custody case.
For example, in a recent case, the other parent had been Baker acted within the last few months. A Baker act is an involuntary civil commitment of a human being for at least 72 hours because they might be harmful to themselves or others. We were able to pull the police reports and the hospital reports for the Baker act, showing without question that the parent truly had a mental health issue that needed to be resolved before timesharing could continue with the child.
In other cases, one can use the services of an appropriately trained child custody evaluator to do psychological testing of both parties during a contested custody case.
Child custody evaluators in Florida are often highly trained and qualified mental health professionals with experience doing psychological testing. In certain cases, a party with concerns over the other party’s mental health may go to the court and ask for a court order that the party submit to psychological testing in front of a trained evaluator.
In any case, the courts consider mental health issues to be real and serious enough to warrant ferreting out whether timesharing should be restricted in any given case. Again, the litmus test for the court is whether the mental health issues are severe enough that to protect the child by restricting timesharing with the parent. If so, the courts will want to either temporarily suspend timesharing, later revisiting the case to see if the problem is being helped with medication, or close the case but leaving an easy way for the party with the mental health problems to come back to court when, and if, they are ready to fix the timesharing order.
Like most of the other examples above, it is important to leave open the possibility that the problems of the offending parent are getting resolved and that a more natural and liberal visitation schedule can go into place.
Custody Courts That Will Award Sole Legal Custody
There are three main types of courtrooms where timesharing restrictions can be brought up and heard by a judge. This shows that the state of Florida has put in quite a few resources to protect children when needed.
Parents find themselves in dependency court when things have gotten really rotten, so much so that the state itself on its own initiative gets involved in the case and restricts timesharing in order to protect children. This can happen in cases of physical abuse of a child where the police had to get involved, drug problems with a parent that have led to an arrest, social services complaints, or involuntary commitments because of mental health problems. Florida law gives great weight to dependency court to step in as an emergency jurisdiction for up to two years. Dependency court will override an injunction court and/or a family law court.
In dependency court, we see the state attorney getting involved and sometimes a public defender is appointed to help a parent on the other end of the proceedings. Psychological testing, drug testing, caseworkers, and social workers come together to make sure that the child or children are protected. Often, the state will restrict timesharing for a period of time and then set in motion a detailed and specific plan that the offending parent must file in order to get reunited with the child or children. Dependency cases are relatively rare for our family law clients, as there is usually a pretty high threshold for the state of Florida to get involved.
Injunctions or Restraining Orders
Injunctions and restraining orders are emergency court orders invoked when one parent alleges under oath that the other parent has committed acts of domestic violence, stalking, or other behavior that suggest that the parent or the children are in imminent danger. Because of the emergency nature of such allegations, an injunction court will grant an order even without a hearing in certain statutory factors because of the emergency nature of such allegations. An injunction court will grant an order restricting timesharing without hearing on a temporary basis provided that the allegations by one parent are sufficient.
However, because this is such an extreme thing to do, the courts must give the accused parent a hearing and a chance to have their due process as quickly as possible. In Hillsboro, Pasco, and Pinellas County, we often see hearings within seven to 10 days after the temporary orders are issued.
At a hearing for an injunction, the parent’s credibility will be tested and the court will have to make a decision if an injunction is warranted.
Emergency Family Court Hearings
An emergency hearing in front of a family law court judge is handled similarly to an injunction court hearing. The attorney for the parent seeking relief can file a sworn motion alleging the emergency situation and detriment to the child. Each county in Florida has a judge, or group of judges, assigned to review emergency family motions on a daily basis.
- If the judge finds from the allegations of the motion that an emergency exists, the judge can grant the motion and either:
Restrict custody immediately but set a quick court date to resolve everything, or
- Not touch custody but still give a quick hearing to evaluate the issues.
Family law court normally moves slowly. Emergency issues are the exception. Family court judges allow people with emergencies to jump to the front of the line. Of course it is important to not abuse the process, and only request emergency relief if it is truly warranted.
Traditional Family Court Hearings
Finally, traditional family courts will hear requests for sole physical custody in child custody cases. In fact, in most cases the traditional family law court will need to make a determination as to sole custody. The family law court overrides the injunction jurisdiction, and emergency family law court hearings are almost always temporary in nature.
At a final hearing, or trial in family law court, the judge will listen to all of the evidence in the case. This could be testimony from witnesses, texts, phone records, Facebook profiles, video evidence, drug tests, mental health evaluations, child custody reports, and more. These hearings can often last between half of a day and a week.