How Does the Court Determine Which Parent Gets the Children in a Florida Divorce?
The court determines custody of children in a divorce action on a case by case basis. Although we attorneys and our clients still commonly refer to this issue as “custody,” Florida law long ago abandoned this polarizing terminology. Under Section § 61.13 of the Florida Statutes, family law courts are now required to establish a parenting plan and timesharing schedule. Gone are the days of custody, visitation, primary residence, etc. Under Florida’s new parenting plan law, neither parent will be designated the “king” or “queen” of the kids. The only titles the parents will get or be referred to as are mother and father.
Under the typical parenting plan, parents share parental responsibility for the children. They are required to make major decisions concerning the children’s health, education and welfare on a joint basis. Courts have come to recognize that children are better off with two involved parents. The exception to this rule is when the court determines that shared parenting would be detrimental to the children, which is relatively rare, and orders sole parental responsibility. Sole parental responsibility may be appropriate where one parent is in prison, physically abusive, addicted to alcohol or drugs or otherwise unable to participate in parental decisions or act in the children’s best interests.
Contact with the children is no longer referred to as “visitation” but is now called timesharing. In the context of a divorce case or any other case involving children (e.g. paternity, modification, etc.) the parties negotiate or a court orders a timesharing schedule. Some parents still do the conventional every other weekend arrangement but that is becoming less and less common. It is not uncommon now for parents to split the children’s time evenly as long as such an arrangement is in the children’s best interests. A good divorce or family law attorney can suggest several different timesharing arrangements in order to find the best fit for your family. The best plan is one which takes into account each parent’s work or other schedule so as to maximize each parent’s time with the children. The paramount consideration, though, is the best interests of the kids…not the best interests of the parents. Many parents lose sight of this factor in the heat of a custody battle.
Section § 61.13(3) of the Florida Statutes lists over 20 factors which a court is required to consider in making a parenting plan and timesharing decision. More often than not courts place great weight on the arrangement agreed to by the parties between themselves in better times before the divorce litigation began. In other words, the court doesn’t reward a parent for being “parent of the year” after the divorce or custody case is initiated. The parent who did the “heavy lifting” such as bathing, clothing, transporting, feeding, educating and nurturing the children during the marriage will more likely than not be the parent who gets the children a majority of the time. Courts, as I like to say, ratify the status quo…and for good reason.
The Rice & Rose Law Firm has been assisting spouses and parents with divorce and family law matters in Volusia and Flagler Counties for over 25 years. Call or e-mail our experienced attorneys and staff if you have questions about a divorce.