Divorce Attorney Scott J. Stadler

    • 23 JUN 14
    Best Interest of the Child – Part 2

    Best Interest of the Child – Part 2

    In the first article in this series we talked about how courts determine custody (in Florida, time-sharing) using the “best interest of the child” standard.  Most states use this standard, but some states keep the definition of the phrase very vague, leaving interpretation to the judges.  Florida sets out very specific criteria for determining the best interest of the child, which also gives some certainty to the phrase.

    Please keep in mind that the court will intervene to determine these issues if the parents cannot come to a reasonable agreement regarding time-sharing, or if the judge does not approve of the agreement and decides judicial intervention is necessary.  Florida prefers that the parents work this out, but if they cannot, the judge will make the determination (Read More).

    We mentioned that the judge first of all considers the health and safety issues for the child, and described some circumstances, such as domestic violence or abuse, that might affect or even terminate the parent’s right to time-sharing.

    We also quoted the specific Florida statutes which set out the criteria that the judges are required to consider.  We won’t quote them again here, but they can be found on the web at www.leg.state.fl.us/Statutes/index, also known as Online Sunshine.

    Co-Parenting and Communication

    Florida strongly encourages each parent to encourage and help foster a good relationship with the other parent, so much so that it is the first in the list of criteria.  The court looks at the parent’s ability and willingness to co-parent in a reasonable manner.  Will they be cooperative with each other if a change in schedule is necessary, or will they feel the need to run to court for every little thing?  Will they communicate reasonably about the child to keep the other informed?  As both parents have the absolute right to be informed about school progress, medical issues, friends, problems, the court wants to know that information will be readily available to the other parent.

    The court also considers whether the parent will protect the child from the ongoing litigation, not share the details of the divorce, and not make disparaging comments about the other parent.  This part can be difficult during a very contentious divorce, but it is really about putting the child or children first and not using them as a conduit through which the parents shovel their “stuff.”  The kids don’t need to be a part of that, they have it tough enough already, and the law recognizes this.

    In fact, one of the items on the list mentions that the court will consider “The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent.”  It seems to mean that a parent who is acting selfishly, not thinking of what is best for the child, will have a tougher time convincing a judge they are entitled to more time with the child than the other parent.

    Another item mentioned is the willingness to keep a united front on major issues.  This too can be difficult, as kids try to divide and conquer to get their way even when the parents are still together.  (“But Dad says I can go to Mexico on Spring Break even though I’m only 15!”)  Presenting a united front tends to provide the stability the courts are seeking and the parents need to demonstrate an ability and willingness to do so.

    Moral Fitness

    The moral fitness of a parent is a factor in determining best interest of the child.  Before you panic about your college flings, or a white lie you told your folks in your teens, this has to do with what is going on in the parent’s life just prior to and during the divorce proceedings.  The court considers whether there are behaviors that would affect the ethical and moral development of a child.  If the child is witness to illegal activity, or subject to verbal abuse, or there is substance abuse in the home, or a series of casual partners, then there may be cause for concern.  The court would not want the child exposed to these things, and would carefully consider the impact of a child spending time around these activities.  The court would probably also take steps to prevent the child from being exposed to these things by limiting the time-sharing or ordering supervised visits.

    Mental and Physical Health

    When the court considers the mental and physical health of a parent in determining the time-share arrangement, it looks to the safety, security and stability of the child when in the parent’s custody.  If there are serious physical limitations, or severe mental health issues, this can affect the time-sharing arrangement.  Keep in mind this doesn’t mean you should not seek help for any emotional issues – this is an emotional time in your life!  It probably does mean that you should inform the court about the issue, acknowledge that you are seeking help, and that you expect it to be resolved in the future.  An experienced family law attorney can help you with this, as it can be an important component of the time-sharing arrangement.

    Similarly, if you have a physical disability, it does not necessarily mean that you will not get time with your children.  It may mean that you have more time for them, which will greatly benefit their development.  Again, you need experienced advice from a dedicated family law attorney to guide you through this.

    Judge’s Discretion

    Keep in mind there is a catch-all in this statute:  the court may consider “(A)ny other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.”  This gives the court wide discretion to make a ruling in the best interest of the child.

    More to Come

    The next article will discuss the emotional and developmental needs of the child, custody options and parenting plans.  This seems like a lot, but this information is critical to successfully achieving a court ordered or court approved time-share plan.

    If you have questions or concerns, or need specific legal advice regarding custody issues, please contact an experienced, dedicated family law attorney.  They will help guide you through these important steps.