Child Custody Attorney in Florida

family speaking to attorney

Florida divorce law requires a parenting plan to be filed with the Florida family law court when a marriage involving minor children is being dissolved. The parenting plan outlines the child custody arrangement between the two parents. The plan should include which parent will be responsible for the child’s healthcare, school functions, and daily tasks, and which parent will have custody on specific days. If the parents are unable to come to an agreement, a Florida family law court will step in and dictate the terms of the parenting plan.

When a court determines a parenting plan their primary objective is to further the best interests of the child. In determining the best interest of the child the court will consider many factors such as:

  • The child’s preference
  • Mental and physical health of both parents
  • Any prior domestic violence allegations or charges
  • Relationship the child has with each parent
  • The parent’s ability to provide a stable living situation for the child
  • The geographic location of each parent
  • The parent’s work schedules

A court will grant shared parental responsibility (joint custody) unless the court determines that it will be detrimental to the child’s interests. Under Florida child custody law, a child’s welfare and support is the responsibility of both parents, regardless if the parents were never married, are still married, or have divorced. Therefore, parents who were not married must still file a parenting plan with the court.

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.

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.

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 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.

Speak To a Child Custody Attorney in Florida

The court will award custody based on the best interest of the child, and it is up to your attorney to prove to the court that your parenting plan is in the best interest of the child. The child custody attorneys at Florida Law Advisers, P.A., know what courts consider when evaluating the best interest of the child and are skilled advocates. We can help you draft a parenting plan and persuade the court that your plan is in the best interests of the child.

We understand how important child custody matters are to our clients and we work tirelessly to help ensure our client’s goals are attained. Please do not hesitate to contact us if you have questions about your child custody rights or for more information about our team of professional family lawyers in Florida.

Frequently Asked Questions

Yes, Florida law requires both parents to attend a parenting class for all divorce and custody cases involving minor children. The course is scheduled to last 4 hours and is intended to educate parents on how to communicate with each other and effectively co-parent.

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.

A motion for contempt may be used against a parent who does not follow the parenting plan. If granted, the judge can impose financial penalties and modify the parenting plan to account for the violations.

Paying child support does not necessarily also include child custody rights. If the other parent is withholding custody, you may need to file a petition to establish parenting plan. When deciding custody, the judge will review all the details of the case and award custody based on what is in the child’s best interest.

Florida law does not give any preference to mothers or fathers when deciding child custody matters. Instead, the judge’s primary focus will be to find what is in the best interest of the child. Therefore, you will need to prove it is in your child’s best interest for you to have full custody.

In Florida child custody & divorce cases, the court will require the parents to submit a parenting plan for judicial approval. The parenting plan outlines how the parents will share the responsibilities and decision-making authority for the children. Once the parenting plan is ratified by the court it becomes a legally binding court order.

Minor children do not have the authority to decide which parent they will live with. The child’s preference can be a factor the judge considers but will not be dispositive. Instead, the judge will review all the details and decide the case based on the child’s best interest.