Child Custody Guide: Florida Family Law

In a Florida divorce or child custody case, the judge will consider the children’s best interests when deciding how time-sharing will be allocated amongst the parents. See Florida Statute 61.13. Florida custody law does not give any preference to mothers or fathers when deciding child custody matters. Instead, the custody arrangement will depend on the specific facts and circumstances of each case.

An attorney is not required in Florida child custody cases but can be very helpful. A Tampa family law attorney can help navigate your case through the court system and advocate on your behalf. If litigation is required, the judge will decide the case based on the children’s best interests. It would be best to have satisfied all the required procedures and present a compelling case to the judge.

What is a Florida Parenting Plan?

In Florida custody and divorces with minor children, the court will issue a parenting plan. The parenting plan outlines how the parents will share the responsibilities and decision-making authority for the children. At a minimum, the parenting plan must describe how the parents will share and be responsible for the child. Additionally, it should specify the time children will spend with each parent. The plan must also designate who will be responsible for health care, school-related matters, and extra-curricular activities.

Examples of Florida Custody Time-Sharing Schedules

There is no one size fits all parenting plan for Florida custody cases. Instead, the terms will vary based on the specific facts of each case. The Court will try to determine a schedule that is in the best interests of the children. Some of the common timesharing schedules in Florida parenting plans are:

• Weekly exchange – when work schedules are similar for both parents, there is little need to juggle times and days; for children, it gives them an easy calendar to follow
• Two weeks at a time – this gives more time in each home and generally works better for older children, particularly teenagers. The schedule may allow busier parents opportunities to schedule their heavier work times during the children’s absence
• A 3-4-4-3 schedule – this is a two-week arrangement where the first week, one parent (let’s say Mom) has the children for 4 days, while the other parent (Dad) has them for 3 days; the next week, it switches so the Dad gets 4 days, and Mom has 3 days
• A 2-2-5-5 schedule – another two-week agreement that lets parents each get two-day blocks, followed by each getting 5-day blocks with the kids. For example, Mom starts with them for 2 days, then Dad gets 2 days, then back to Mom for 5 days, and then to Dad for 5 days, at which point the cycle repeats.
• A 2-3-2 schedule – this is a weekly schedule that alternates between Mom and Dad each week. For instance, in week 1, Mom has them for 2 days, then Dad gets them for 3 days, and then back to Mom for 2 days, after which it reverses with Mom getting the 3 days between Dad’s two stints of 2 days each.

The “Big” Talk

Separation is not just stressful for the parents; children need comforting as well. It is an awkward but important conversation to have with your children. When deciding how to tell your kids about the divorce, it is important to prepare for it. In particular, factor in the following ideas:

• Do It Together – unless absolutely impossible, this is a conversation in which both parents must participate and attend.
• Write It Out – very few people thrive in impromptu performances; for this situation in particular. It is important to script out what you will say, recognizing that you will “wing it” when it comes to the real thing (but at least you both will be prepared).
• Schedule the Talk – this is not an offhand “Oh, by the way…” conversation tossed out while dropping the kids off at school.
• See With Their Eyes – try to gain their perspective on this revelation; remember, you two have had time to plan and prepare for this, but for the children, it’s a shock, maybe even a trauma – seeing it from their point of view can give you more empathy and understanding.
• Keep Life the Same – this is a big change, so keeping the remainder of their lives (school, after school activities, hanging with friends, music lessons, etc.) familiar can help them integrate this change and give them “comfort” zones which haven’t changed.

Uncontested Custody Cases in Florida

An uncontested case is when both parents have reached an agreement before filing the case. If there is an agreement on the terms of custody, it will speed up the court process. If parents agree on the terms of the parenting plan, the judge will typically ratify their agreement. Usually, a judge will only interfere if the terms conflict with Florida law or policy.

Florida courts have a policy of allowing both parents to have frequent and continuing contact with their children. When shared custody is ordered, a court should refrain from awarding a parent ultimate responsibility concerning the children. See Florida child custody case, Markham v. Markham. However, control over specific aspects of the child’s welfare may be awarded to one parent. For instance, responsibility for the child’s education or health care may rest in the hands of just one parent when shared parental responsibility is impracticable. See Wilson v. Wilson.

How is Custody Determined in Florida?

If the parents cannot reach an agreement, the judge will decide the parenting plan’s terms. The judge’s primary focus will be to find what is in the children’s best interest and welfare. See Decker v. Lyle. The judge can consider all relevant circumstances when determining custody. For instance, the judge can consider the child’s relationship with both parents, any child’s special needs, a history of domestic violence, and the child’s preference. See Denker v. Denker.

Florida child custody law 61.13 also lists many factors for the judge to consider, including but not limited to:

• Each parent’s willingness to act upon the needs of the child, as opposed to the needs of the parent
• The preference of the child.
• When considering a parent’s moral fitness, the court will focus on whether the parent’s conduct has had or is reasonably likely to impact the child directly adversely.  The mere possibility of an adverse impact is not enough. See child custody case McKinnon v. Staats.
• The home, school, and community record of the child.
• Each parent’s demonstrated capacity and disposition to participate and be involved in the child’s school and extracurricular activities.
• Whether both parents have demonstrated an ability and willingness to facilitate and encourage a close and continuing parent-child relationship, to honor a time-sharing schedule, and to be reasonable when changes are required.
• Whether both parents have demonstrated an ability and willingness to determine, consider, and act upon the child’s needs instead of their own needs or desires.

The Child’s Preference

In custody cases, the judge may consider the children’s preference when determining the parenting plan terms. See Jeffers v. McLeary. However, the child’s preference cannot be the sole factor the court relies on to determine a parenting plan.  See Florida child custody case, Garvey v. Garvey. It is important to note minor children may not attend a child custody hearing without prior court approval. See Florida Family Law Rule of Procedures 12.407. The parent requesting a child’s testimony must first schedule a court hearing on the request. At the hearing, the judge will consider all relevant factors when ruling on the request. If granted, the judge may allow the minor to testify about the child’s preference in custody.

If the court does allow the child to testify, it will typically be an in-camera examination. An in-camera examination will usually take place in the judge’s office without the parents and lawyers present. The public will not be allowed to attend as in-camera examinations are private. However, a court reporter will be permitted to attend the examination. The court reporter will transcribe the conversation and make the record available for a future court hearing. If the judge refuses to allow a court reporter to be present, it may be grounds for an appeal. See Hickey v. Burlinson.

Where Should the Custody Case be Filed?

In 2002, Florida adopted the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA). The UCCJEA is used to determine which state has jurisdiction to enforce custody law. A substantially similar law has been enacted in all 50 states. The laws regarding jurisdiction are reciprocal and should not conflict with each other. The UCCJEA is designed to prevent a parent from changing states to avoid being subject to Florida law. The UCCJEA also prevents a new state from entering any orders until Florida affirmatively relinquishes jurisdiction.

Under the UCCJEA, the state with jurisdiction over child custody matters is referred to as the home state.  The home state is where the child lived for at least six consecutive months immediately before filing the case. If no state meets the criteria, the state with the most significant connection should be considered the home state.

Once a court with home state jurisdiction enters a child custody order, all other states are bound by that order and have no authority to modify it. Further, even if a child lives in a new state for over six months, the prior state will still have exclusive jurisdiction over custody disputes, as long as one parent continues to reside in the original home state. See Florida Statute 61.515. This is commonly referred to as continuing exclusive jurisdiction. Until jurisdiction is removed from Florida, only Florida courts can issue or modify court orders regarding custody.

What is a Guardian Ad Litem?

A guardian ad litem (GAL) can be a constructive person in child custody cases. In some cases, a GAL is automatically appointed by the Court. There must be a request to appoint a GAL and approval from a judge in other child custody cases. Guardian ad litems can be very helpful but are not appropriate for all child custody cases. Before asking a judge to appoint a GAL, you should speak with a Tampa child custody attorney for advice about your specific case.

The guardian ad litem’s mission is to advocate for the best interests of the child. The GAL is not appointed for the interests of either parent or a third party. A GAL is given the power to investigate and issue a report for the court. Under Florida law, a guardian ad litem shall have the powers, privileges, and responsibilities to the extent necessary to advance the child’s best interests. See Florida Statute 61.403

Recorded Conversations and Videos in Custody Cases

When a couple is going through a divorce or child custody dispute, there may be insults and threats made. Often, people will try recording conversations for evidence in a child custody case. However, Florida law has stringent laws for recordings that must be followed. If you feel you have recordings that would help your case, contact a child custody attorney in Tampa.

Under Florida Statute 934.06, any information gained from illegal monitoring/recording of electronic communications or oral communications will not be admitted as evidence. Further, each party in a proceeding has an expectation of privacy from interception by another party. See Shevin v. Sunbeam Television Corp. Interception in this context means gaining information by using electric, mechanical, or other devices. See Florida Statute 934.02.

In Florida, electronic communication is defined as any transfer of information shared partly or wholly by a wire, radio, or other electronic devices. Information includes signs, signals, writing, images, sounds, or data. See Florida Statute 934.03. Electronic storage of documents may also be protected communication. An example of illegally recording electronic communication would be installing software that allows a party to intercept the opposing party’s emails and instant messages. The information gained through this type of technology will not be admissible in trial. See O’Brien v. O’Brien.

Illegal recording of oral communication may also include conversations that occur in person. A common example in divorce cases is recording a conversation between spouses without the other party’s consent.  These types of recordings are typically not admissible in Florida divorce and child custody cases.

Modifying the Parenting Plan

Once the Court has issued the parenting plan, it will be binding on both parents. However, Florida child custody law 61.13 does allow parenting plans to be modified. To modify the parenting plan, there must be a substantial, unanticipated change in circumstances. Additionally, the proposed changes must be in the child’s best interest. The burden of proving that the change is unexpected and substantial can be difficult without competent legal counsel. Therefore, if you feel it will be in your child’s best interest to modify or prevent a parenting plan change, you should contact Tampa child custody lawyers for assistance.

Determining if there has been a substantial change is decided on a case-by-case basis. However, some situations will almost always automatically be deemed substantial. These include but are not limited to:

• Death of a parent
• Child abuse
• Conviction of a crime resulting in long term imprisonment
• Repeated arrests for DUI while the child was in the car

A Florida family law court is likely to deem a change substantial when there is a combination of factors. For instance, allegations of substance abuse are generally not enough to automatically be deemed substantial unless the child’s abuse poses a danger. See Farrow v. Farrow. Further, changes in a parent’s health or financial condition are typically not enough by itself to be considered substantial. However, if the change is coupled with some other factor, it may be deemed a substantial change. See Perez v. Perez.

Under Florida law, there is a presumption the husband and wife are the parents of children born during the marriage. See Florida Statute §382.013. The presumption means that the law will assume the husband is the father without evidence to the contrary. See child custody case O’Bryan v. Doe. If the male wants to dispute paternity, a petition for the disestablishment of paternity should be filed in court. See Florida Statute 742.18.

If the child is born to an unmarried couple, the father may need to file a paternity case to establish parental rights. See Florida Statute 742.10.  Being listed as the father on the birth certificate alone may not be enough to establish paternity. The father may not have any custody rights until paternity is established. If the mother agrees both parties are the child’s parents, a DNA test may not need to be taken. If a parent disputes paternity, a scientific DNA test will likely be required.

Terminate Father’s Rights in Florida

Generally, there are two ways to disestablish paternity and terminate the father’s rights legally. The first is under the Florida Rules of Civil Procedure.  Rule 1.540 allows a father to obtain relief from a judgment, decree, or order within one year of its entry.  The grounds for relief under Rule 1.540 include mistake, fraud, misrepresentation, or newly discovered evidence that could not have been previously discovered by due diligence.

Florida Statute 742.18 can also provide a means to terminate the father’s rights and child support. Proceeding under this law can be difficult, and it is strongly recommended to retain a Tampa child custody attorney to assist.  To obtain relief under this statute, the father must include all of the following in the petition.

1. An affidavit stating that newly discovered evidence relating to the child’s paternity has come to the petitioner’s knowledge since the initial paternity determination or establishment of a child support obligation.
2. Scientific tests administered within 90 days of the petition showing the petitioner is not the child’s father. Alternatively, the petitioner can allege access to the test was not available.
3. The petitioner is current or substantially complied with all child support obligations.

It is important to note that including the above three elements in the petition is not always enough to terminate the father’s rights in Florida. The three elements above are necessary to file a valid petition; it does not guarantee success.

Terminating Parental Rights in a Florida Stepparent Adoption Case

To complete a Florida stepparent adoption, the parental rights of the biological parent must be terminated. The biological mother automatically obtains parental rights upon the birth of the child. Therefore, in every adoption case where the mother is still living, there must be a judgment of termination of parental rights entered by a court of law before the adoption can occur. If the mother were married at the time of conception or birth, the mother’s husband would also acquire parental rights automatically upon the child’s birth. Fathers to children born out of wedlock will need to establish paternity legally. Until paternity is established, the father will not be legally recognized under the Florida child custody law. For assistance with establishing paternity, contact a Tampa child custody attorney.

Florida Stepparent Adoption

Adoption is creating a legal relationship between parent and child, where such a relationship did not exist. When adoption is complete, the biological parents’ parental rights are terminated, and the adopting parties assume all rights, privileges, and obligations as parents of the adopted child.

Generally, there are three types of adoption cases in Florida. See Florida Statutes Chapter 63. The most common type of adoption cases is when the parents voluntarily consent to the adoption. The second type of adoption cases originates in dependency cases. In dependency termination cases, the court determines it’s not in the child’s best interest to remain with the biological parent. Thirdly, are Florida stepparent adoption cases.

Florida Stepparent Adoption with Consent of the Biological Parents

Adoption by consent can only occur if all the persons required to consent under Florida adoption law consent to the adoption per Florida’s requirements. If the minor child to be adopted is over 12 years of age, the child must consent as well. See Carlson v. Keene. The minor child’s consent must either occur in front of the judge or be acknowledged before a notary public in the presence of two witnesses.

Generally, the written consent of the mother is required in consent adoption cases. The mother’s consent must occur at least 48 hours after the child’s birth to be legally binding. If the father has legally vested his parental rights, his consent will also be required. Additionally, the law will require the consent of any other person who has legal custody of the child. However, a court does have the authority to not require consent in the following circumstances:

• The parent has deserted the child without means of identification. See Florida Adoption Law 63.064.
• A court of law has previously terminated the parent’s parental rights
• The parent has been legally declared incompetent

Revoking Consent to a Florida Stepparent Adoption

Consent to adoption should not be taken lightly. The consent to a Florida stepparent adoption may not be withdrawn on a mere whim or because of a change of heart. Under Florida law, consent to a Florida stepparent adoption may only be revoked if the consent was obtained by fraud or duress. See Florida Adoption Statute 63.082.

Absent fraud, duress, or undue influence a consent to adoption that is given voluntarily and freely is irrevocable. Further, the party wishing to revoke the consent has the burden of proving fraud or duress was present with clear and convincing evidence. Revocation of consent will depend on the facts and circumstances of each case. Therefore, if you think you may be entitled to revoke a prior consent to adoption, you should contact a child custody lawyer in Tampa for advice about your specific case.

Enforcing a Parenting Plan in Florida

A Florida family law court can use many different types of sanctions to enforce a parenting plan. The penalty most often enforced is a sanction that requires the parents to offset the missed visitation. In fact, Florida family law requires the court to “award the parent denied time a sufficient amount of extra time-sharing to compensate for the time-sharing missed.”  The noncompliance does not need to be caused by a willful disregard for the parenting plan. Instead, a parent needs only to prove the other parent failed to comply with the parenting plan without proper cause. See Florida child custody case Cummings v. Cummings.

Ordering additional visitation to make up for noncompliance is just one possible sanction. For instance, a court may also order the non-compliant parent to:

• Pay the compliant parent’s court costs and attorney’s fees
• Attend a court-approved parenting course
• Pay the costs incurred by the children having frequent and continued contact with the parent
• Hold the non-compliant parent in contempt of court – contempt is typically reserved for cases where awarding additional visitation have proven ineffective
• Modification of the parenting plan

Modification of parenting plans as a sanction to enforce a Florida parenting plan is normally a last resort. Usually, the court will exhaust some of the other sanctions before modifying the parenting plan for noncompliance. See Rahall v. Cheaib-Rahall. Further, any modification based on non-compliance must also be in the best interests of the child.

Enforce a Florida Parenting Plan Outside of Court

A parent should not retaliate or resort to self-help when the other parent fails to comply with the parenting plan. Instead, a case to enforce a Florida parenting plan should be filed in a court of law. A parent’s noncompliance does not permit the other parent to take matters into their own hands and disregard their own obligations under the parenting plan. For instance, withholding child support payments or alimony is not permitted as retaliation for failure to abide by a parenting plan. See Florida v. Lemaster.  This holds even if the noncompliance is willful and intentional. If a parent has failed to comply with the parenting plan’s terms, you should contact a child custody law firm in Tampa for assistance.

Enforce a Parenting Plan in Hillsborough or Pinellas County

In Hillsborough & Pinellas County, Florida, all child custody or divorce issues that arise after the final judgment are automatically sent to mediation. See Administrative Orders S-2009-107 & 2011-006 PA/PI-CIR. For instance, if a parent does not comply with a parenting plan, the case must go to mediation before a judge rules on the mater. Likewise, if a former spouse does not comply with the divorce decree’s terms, mediation will be necessary before a judge will hear the case.

Unlike a Florida family law judge, the mediator does not have the authority to compel either party to enter into an agreement. Additionally, the mediator has no authority to decide the outcome of the case. Typically, the mediator will be a Florida family law lawyer who is familiar with Florida law. However, the mediator must be independent and not associated with either side in the case. There are mediation centers in the courthouse, as well as private mediation facilities. In most instances, mediation provided at the courthouse will be less expensive than private mediation.

The Administrative Orders require both sides to attend mediation in good faith. There is no requirement that an agreement is reached, only to negotiate in good faith. If the dispute is not resolved in mediation, it can then be sent to a judge to decide the outcome.

Consult a 5-Star Child Custody Law Firm in Tampa

If you need assistance with a child custody case, contact Florida Law Advisers, P.A., to speak with a child custody attorney in Tampa. Every case is different, and our vast experience allows us to cater our services to each client’s individual situation. Whether a couple mutually agrees to the terms of a divorce or are engaged in a fierce battle for child custody rights, we can help. At Florida Law Advisers, P.A., you not only receive the highest quality legal support, but you also will work with empathetic professionals who can understand and support you through this difficult time.

We understand how important child custody matters are and work tirelessly to protect our client’s rights. When the issues cannot be resolved through negotiations, we are prepared to go to court and fight aggressively for our clients. We are available 24 hours a day, 7 days a week, and offer a free initial consultation. Call us today at (800) 990-7763 to speak with a child custody attorney.

Frequently Asked Questions