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 Florida 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.
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.
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 Florida 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.
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.
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 Florida 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 Florida
If you need assistance with a child custody case, contact Florida Law Advisers, P.A., to speak with a child custody attorney in Florida. 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
The guardian ad litem’s (GAL) mission is to advocate for the best interests of the child. A GAL has the authority 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 best interests of the child.
Under Florida Statute 934.06, any information gained from illegal monitoring/recording of electronic communications or oral communications will not be admitted as evidence during a trial. Further, each party in a proceeding has an expectation of privacy from interception by another party.
