Florida Custody Law, A Guide for What You Need to Know
July 15, 2023 – Barbara Helm Peters, Esq.
Florida custody law always considers the children’s best interests. The presiding judge in a Florida custody case must consider what’s best for the child when deciding how to allocate time-sharing between the parents. Child custody law in Florida does not give any preference to fathers or mothers during child custody rulings. Beginning July 1, 2023, there is a rebuttable presumption that equal timesharing is in the best interest of the child. A parent who wishes to rebut this presumption has the burden of proving by a preponderance of the evidence that equal timesharing is not in the child’s best interest.
Every case dealing with child custody issues is different and must be evaluated based on how the specific circumstances impact the best interest of the child. The right attorney can help you navigate a child custody case to ensure that you present a solid case in front of the judge that offers the best of everything for your child, putting you in a favorable position for the desired outcome.
Let’s explore Florida’s child custody law and everything you need to know!
Florida Parenting Plan
In Florida custody cases with minor children, the judge will need to approve a comprehensive parenting plan outlining the responsibilities and decision-making authority given to each parent and how they are expected to execute them. At the bare minimum, the parenting plan should state how each parent will share responsibilities for their children’s wellbeing, specify the time each child will spend with each parent, and which parent will be responsible for the child’s healthcare, education-related matters, and extra-curricular activities. Additionally, the parenting plan must state how the parents will communicate with the child.
The Time-Sharing Terms in a Parenting Plan
Florida parenting plans vary from case to case as the court always decides what is in the child’s best interest unless the parties come to an agreement. That said, here are some common time-sharing schedules in the state’s parenting plans:
- Weekly Arrangement: Each parent gets to keep the child every other week. It happens when the parents have a similar work schedule that does not require them to juggle days and time, enabling the children to follow a simple schedule as well.
- Two Weeks: Each parent keeps the child for two consecutive weeks before exchanging. It enables the children to spend more time in each home, which works better for older children. It also frees parents up to pursue various opportunities or schedule their work during the child’s absence.
- A 4-3-3-4 Schedule: A two-week arrangement in which one parent has the child for the first 4 days, and the other parent has them for the next 3 days. The next week, the first parent gets to keep the child for 3 days, and the other parent keeps them for 4 days.
- A 2-3-2 schedule: A weekly schedule in which one parent (mom) has the child for 2 days, and then the other parent (dad) gets them for 3 days, followed by 2 days with the mom. Then, the next week, the schedule changes so that the child spends 2 days with their dad, followed by 3 days with their mom, and then the remaining two days with their dad.
- A 2-2-5-5 schedule: In this arrangement, each parent gets two-day blocks with the child, followed by 5-day blocks for each, and then the cycle repeats. For example, one parent has the children every Monday and Tuesday; the other parent has the children every Wednesday and Thursday, and then they alternate having the children Friday through Monday morning.
Talk to Your Child
Child custody in divorce cases is never easy to handle. The divorce isn’t just stressful and complicated for the parents but also for your children, who will need comfort throughout the process. So, if you find yourself navigating these waters, make sure to have a conversation with your children and tell them about the divorce and the custody arrangement.
Ideally, both parents should break the news of their divorce to their children together by scheduling a time for the discussion. Make sure to assess your child’s reaction and give them time to process this life-changing news. Be empathetic and understanding toward them. Lastly, make sure you keep their life familiar. Enable them to go to school, partake in after-school activities, socialize with friends, etc., as they would normally do before getting the news, helping them hold onto normalcy. Most importantly, don’t involve your children in the divorce, or try to have them take sides.
Uncontested Child Custody Cases in Florida
An uncontested case is when the parents reach an agreement before filing the case. If they agree on the custody and parenting plan terms, it will speed up the court process as the judge will typically ratify their agreement unless the terms conflict with public policy.
Even if the case does not begin uncontested, most custody cases do resolve with an agreement during the process. This is because parents have more freedom regarding the terms of their parenting plans and timesharing schedules than the Court, which is bound to follow the statutory framework contained in the Florida statutes. Courts encourage parents to try to come to an agreement because they know their children best, and certainly better than a judge who only knows what is presented in court. An experienced attorney can help negotiate a reasonable parenting plan in the child’s best interests.
How Does Florida Determine Custody?
When the parents are unable to reach an agreement outside of court, the judge decides their parenting plan terms based on the child’s best interest. Beginning July 1, 2023, there is a rebuttable presumption that equal timesharing is in the child’s best interest. A parent wishing to rebut the presumption has the burden of proving that equal timesharing is not in the child’s best interest. Except when a time-sharing schedule is agreed to by the parties and approved by the court, the court must evaluate all of the factors set forth in the statute and make specific written findings of fact when creating or modifying a timesharing schedule. The judge considers all relevant facts and circumstances when assigning custody, including the child’s relationship with both parents and their preferences.
Florida custody law 61.13 lists 20 factors the judge must consider when assigning custody, including:
- child preference
- Parent willingness to meet the needs of their child
- Parent moral fitness and how/if it will impact the child directly or indirectly.
- Parent capacity and willingness to be involved in their child’s school and extra-curricular activity.
- The child’s school, home, and community record
- Parent ability and willingness to grow and maintain a close relationship with their child, honor time-sharing schedule, and be reasonable for unexpected changes.
- Parent ability to act on the child’s needs instead of their own wants.
The Child’s Preference
The judge might consider the child’s preference when detailing the parenting plan terms in Florida child custody law. However, it’s certainly not the sole factor the court considers in such cases. Minor children cannot attend their custody hearings without prior court approval.
So, if you want to request your child’s testimony, you will need to schedule a court hearing for that request. The judge will consider your reasons and other relevant factors when ruling whether to allow the minor to testify or not. If the court allows child testimony, it will more than likely be in-camera.
An in-camera examination usually takes place in the judge’s office without the attorneys, parents, or the general public. Only a court reporter will attend the examination, transcribe the conversation, and record the case for a future court hearing. You can appeal if the judge doesn’t allow the court reporter to be present.
Where Should You File the Custody Case?
Florida adopted the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) in 2002. The UCCJEA determines which state has jurisdiction to apply child custody law. It is designed to prevent parents from changing states to avoid being subjected to Florida law. It also keeps the new state from applying for any orders until Florida has relinquished its jurisdiction on the case.
Under the UCCJEA, the state with jurisdiction is named the home state, i.e., where the child lived for at least six consecutive months before the case was filed. If no state meets that criteria, the state that most fits it will become the home state. If you file a case with home state jurisdiction, no other state can break, challenge, or modify its order.
Even if your child lives in a new state for more than six months, the original state will have exclusive jurisdiction over custody matters as long as one parent resides in that state. It is commonly known as continuing exclusive jurisdiction. So, until jurisdiction is removed from Florida, only the state can issue or modify its court orders.
The Role of the Guardian Ad Litem
A guardian ad litem is someone automatically appointed by the court or appointed on request and approval from a judge in a child custody case. A guardian ad litem is an individual who will always advocate for the child’s best interests instead of fighting on behalf of either parent. Under Florida child custody law, they have the power and responsibility to investigate and report to the court to ensure the custody agreement reflects the child’s best interests.
Laws for Recorded Conversations and Videos
When a couple is undergoing a child custody battle, they can throw insults and malign each other’s character. People might try recording evidence to strengthen their case. However, Florida has strict laws for recording that you need to follow. If you believe a recording will help your case, you need to contact a reliable child custody attorney in your area to seek guidance on how to use it.
Under Florida law, the information attained from illegal electronic or oral communication recordings cannot be admitted as evidence. In Florida, electronic communication is the transfer of information via a wire, radio, phone, or any other electronic device. The information can include writing, sounds, images, data, signs, etc.
Moreover, documents stored electronically are also not admissible in court. For instance, installing software that enables you to intercept the other party’s messages, videos, and emails will be considered illegally recorded and inadmissible. In-person conversations between spouses recorded without the other party’s consent are also not admissible in Florida child custody court.
Can You Modify the Parenting Plan?
Once the court issues a parenting plan, both parents will have to abide by it. However, according to Florida child custody law 61.13, the parenting plan can be modified when there is a substantial and material change in circumstances and the change is in the child’s best interests. You will need competent legal counsel to prove the changes are substantial and material. Some common examples of such changes include:
- A parent death
- Child abuse
- Repeated DUI arrests with the child in the car
- A crime conviction resulting in long-term imprisonment
A Florida family law court might deem a change substantial when a combination of factors, such as child abuse and danger, are present. Moreover, changes in parent health or financial condition that results in a significant impact on the child might convince the court to consider the change as substantial.
Paternity Law and Father’s Rights in Florida
Florida law presumes that the husband and wife are parents of the children born during their marriage, and they are both natural guardians of the children. Until July 1, 2023, the Mother was considered the natural guardian of a child born out of wedlock. With the new law change, a Father who has established paternity, such as signing an acknowledgment of paternity and being listed on the child’s birth certificate as the father, is also a natural guardian of the child and is entitled to and subject to the rights and responsibilities of a parent.
If a father has not acknowledged paternity, he will need to have his paternity and parental rights established by the court. If necessary, a DNA test will be ordered to conclusively determine paternity.
Disestablishment Of Paternity
Florida Statute 742.18 offers a way to disestablish paternity and terminate the father’s child support and rights. You will need an experienced child custody lawyer to assist you with the proceedings under this law. If the father wants relief under this statute, he must include the following in the petition:
- An affidavit declaring the newly discovered evidence related to the child’s paternity
- Scientific tests were performed within 90 days of the petition proving the petitioner is not the child’s father. The petitioner can also allege they had no access to the test previously.
- The petitioner is current or has substantially complied with all child support obligations.
Even if you include all three elements in your petition, there is no guarantee the court will disestablish paternity and terminate the father’s child support obligations in Florida. With that said, these elements are essential to filing a valid petition.
Enforcing Parenting Plans in Florida
A Florida Court can use various sanctions to enforce a parenting plan in custody cases. The penalty often enforced is a sanction that demands the parents to offset a missed visitation. Florida’s family law requires the court to award the parent who was denied time extra time-sharing to compensate for the time-sharing they missed.
All they have to do is prove the other parent did not comply with the rules of the parenting plan without proper cause. The court-ordered additional visitation to make up for one parent’s noncompliance is merely one of the possible sanctions. Other sanctions include ordering the non-compliant party to:
- Pay the compliant party’s attorney’s fees and court costs
- Attend a parenting course approved by the court
- Pay the costs incurred by the children having continued contact with the parent
Additionally, the court might also hold the non-complaint parent in contempt of the court. It happens in cases where awarding make-up visitation time is proven to be ineffective. Lastly, the court might resort to modifying the parenting plan if it is alleged and proved that it is in the child’s best interests to modify the plan.
Enforcing a Parenting Plan Outside of Court in Florida
A parent should not resort to self-help when the other parent does not comply with the parenting plan. Instead, they should file a motion to enforce the Florida parenting plan in a court of law. A parent’s noncompliance does not enable the other party to take matters into their own hands and completely disregard the court’s mandated obligations under the parenting plan.
For instance, they should not withhold child support payments or alimony in retaliation for the other party’s failure to abide by the parenting plan. This is required even if the other parent’s noncompliance is intentional and willful. If the other party fails to comply with the parenting terms, you should contact an experienced law firm in Florida for assistance.
Consult a Reputable and Experienced Florida Child Custody Law Firm
If you need help, guidance, or legal assistance in your Florida child custody case, contact Mario, Gunde, Peters & Kelley to speak with a seasoned child custody attorney in Florida. The lawyers at our firm understand that each custody case is different and have the in-depth experience to offer you the services needed to resolve your case with the best possible outcome. We have a board-certified attorney in marital and family law, which means that she has been evaluated by The Florida Bar for credibility and expertise in marital and family law and professionalism and ethics in the practice of law.
Whether you have agreed with your separated partner to come to mutually beneficial terms or you need to engage in a fierce custody battle, you can count on us to have your back. We work tirelessly to protect your child’s well-being and help the court reach a decision that puts their interest front and center. Get in touch with us today!