Divorce Attorney Scott J. Stadler

    • 18 JUN 14
    How Is Child Custody Determined?

    How Is Child Custody Determined?

    In Florida, when parents are getting a divorce, one of the major issues is who will have primary custody of the children.  Actually, it is not even called “primary custody” in Florida; the term used now is “time sharing.”

    It used to be that mothers were considered the best parent to have primary custody.  That line of thinking has gone by the wayside, and in fact the Florida statutes specifically state that the father shall be given the same consideration in determining primary residence of the child irrespective of the age or sex of the child.  As we have often seen, sometimes this is best for the child.

    The courts prefer that the divorcing parents work out a fair and reasonable time-sharing schedule between themselves, but sometimes the parents cannot come to agreement on this issue.  The court will then look to a variety of factors in determining what is best for the child.

    “Best interest of the child”

    Nearly every state in the United States has implemented the “best interest of the child” criteria in determining custody issues.  Each case is unique, and the judges consider the individual circumstances.  In Florida, neither parent is considered the presumptive “best” parent, and each parent starts out on equal footing in the eyes of the law.

    Florida statutes very specifically set out what criteria the judges should consider.  Taken directly from the statutes, here is the list of things the judges consider in determining the best interests of the child.

    “Determination of the best interests of the child shall be made by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family, including, but not limited to:

    (a) The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required.

    (b) The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.

    (c) 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.

    (d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.

    (e) The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of either parent with a child.

    (f) The moral fitness of the parents.

    (g) The mental and physical health of the parents.

    (h) The home, school, and community record of the child.

    (i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.

    (j) The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to, the child’s friends, teachers, medical care providers, daily activities, and favorite things.

    (k) The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, and daily schedules for homework, meals, and bedtime.

    (l) The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child.

    (m) Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect, regardless of whether a prior or pending action relating to those issues has been brought. If the court accepts evidence of prior or pending actions regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect, the court must specifically acknowledge in writing that such evidence was considered when evaluating the best interests of the child.

    (n) Evidence that either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect.

    (o) The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties.

    (p) The demonstrated capacity and disposition of each parent to participate and be involved in the child’s school and extracurricular activities.

    (q) The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse.

    (r) The capacity and disposition of each parent to protect the child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child.

    (s) The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs.

    (t) Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.”

    Health and Safety

    As you can see, this list of considerations is extensive.  First and foremost concerns for the child are the health and safety issues.  While Florida prefers shared parental responsibility, if the court feels that the child may be in danger, this principal will not apply.  If there is evidence of physical or emotional abuse or there has been abandonment or neglect, a parent can lose custody or visitation rights.  If there is evidence of domestic or sexual violence present near where the child would be, the judge may deny time-sharing or order supervised visitation only.  If there is evidence of substance abuse in a parent’s home, that can affect time-sharing or visitation.  The judge also considers the mental health issues, both of the child and the parents.  The physical surroundings the child would be in are also considered, and if there are sanitation or habitability issues, time-share and visitation could be affected.  The court is seeking safety and stability for the child, and all these circumstances affect the court’s ruling.

    More Discussions to Follow

    There are so many issues to discuss on this topic, we couldn’t possibly put them all in one blog post.  This gives some basic information, and we will continue the series on this in the near future.

    If you have questions or need help with your divorce and time-sharing issues, you need to contact an attorney experience in these matters.  A dedicated family law attorney can help guide you through this time.