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Child Custody

FLORIDA CHILD CUSTODY

Our attorneys  find that the best way to avoid disaster in divorce and family law cases is for parents to make an active effort to work with their other spouse to come to a reasonable arrangement for how they will share time and parental responsibility with their children.  Oftentimes, when parents are not seeing “eye to eye”, it can be helpful for parents to work with a marriage and family therapist/counselor to discuss their concerns with respect to their children following divorce.  In many cases, a counselor or therapist can help divorcing parents realize why certain parenting issues are important to the other spouse, which can make it easier for parents to come up with fair arrangements that address each of their concerns.

Best Interests of the Child

Keep in mind it is the public policy of Florida that determining each parent’s access and rights to their children is determined in manner that supports the “best interests” of each child. However, when making this decision, the Judge is expected to follow the public policy of Florida, which is to allow both parents to have frequent and continuing contact with their children following divorce in a manner that allows each parent to participate in the “rights and responsibilities, and joys, of childrearing.”

If the parties cannot agree, in most cases the court will be setting a schedule that allows each parent significant access to their children but skips the “personalized” details that parents can have added to a parenting plan that is reached through an out of court settlement.  It makes the most sense for parents to reach compromises with their spouse on parenting issues  early on before tensions rise, money is spent, and, in the worst case scenario, a judge develops a parenting plan that ignores important concerns of each parent.

Click Here to see the full list of Best Interest of the Child Factors

I am locked in a child custody battle. Should I consider shared custody?

Shared or joint custody is increasingly popular and can offer numerous benefits to parents and their children. Unless there is a history of abuse or one parent is extraordinarily negligent we advise parents to consider shared custody for the reasons below.  Florida, like most states, uses a best interests of the child standard to determine child custody, which means that both parents will almost always get some time with the child. Read more about the benefits of shared custody here.

Domestic Violence and Child Abuse

It is Florida’s public policy that both you and your spouse share in the responsibility of raising your child and that your child has frequent and continued contact with both of you unless it is determined that doing so would be detrimental to the child. The court will consider evidence of domestic violence or child abuse as evidence of detriment to the child whether or not there is a conviction of any offense. This also includes evidence sexual violence, child abandonment or child neglect.

If this evidence is accepted by the court then it is considered a rebuttable presumption and that this is detrimental to the child. If the presumption is not rebutted after the convicted parent is advised by the court that the presumption exists, shared parental responsibility, including time-sharing with the child, and decisions made regarding the child, may not be granted to the convicted parent.

Can my child testify in a Florida child custody hearing?

It is rare. In most cases it is not a good idea to drag your child in a custody battle and judges are hesitant to allow a child to testify in a custody case. In fact The Florida Family Law Rules of Procedure includes a presumption against allowing your child to testify in court.

Having your child testify can be very stressful on your child and they could end up feeling guilty if they feel they have betrayed you in some way.  You should keep this in mind even in spite of the fact that your child’s “testimony” will almost always consist of the Judge asking your child questions outside of the presence of you and your spouse and your attorneys it still could be harmful.

However, the court rules do allow your child to testify in court if a party brings a motion to allow the child to testify and demonstrates “good cause” for allowing the testimony.

Before you consider using your child as a witness, you need to ask yourself:

  • Is this information important enough to bring the child into court?
  • If so, is there another way I can get the information before the judge without having to have my child testify?

Remember the most important witness in your custody case is you, so it’s best to be prepared and not active in a vindictive or malicious manner.

Does my child’s preference matter in my custody case?

It all depends on your situation. If the Judge determine your child to be of sufficient intelligence, understanding, and experience to express a preference he or she can consider your child’s preference when it comes to a parenting plan. If your child is at least 15 years old it will be given great weight.

It is important to note that your child’s preference is not the “end all be all” for a Judge to consider. The child’s preference must be balanced with all of the other best interest factors.

Below is a list of commonly asked questions that our West Palm Beach Family Law Attorneys receive about child custody in Florida. Clicking each question listed below will provide you with a detailed answer.

Psychologist & Child Custody Evaluators in Florida

Custody evaluations by a psychologist that specialize in the mental health of children are very common in custody cases. Florida Family Law Rules of Procedure provide for evaluation of parents and children by a psychologist or mental health professional.

The Best Practice is to Use a Court Appointed Psychologist

An evaluation by a psychologist appointed by the court as opposed to a psychologist that you or your spouse hire is highly recommended. Why? The judge in most cases will be skeptical of an psychologist you hired.  If you have paid the expert a high fee then the judge may be skeptical  that your hired expert will make recommendations more in your favor.  In turn, the court appointed psychologist will have access to all family members or any other person they deem necessary for their evaluation. (aunts, uncles, teachers, baby sitters, etc).

Also, the judge will give the court appointed psychologist’s recommendations much more weight.  This of course can work in your favor or not, so it is important to give the psychologist (evaluator) as much access as they request and always be cooperative.

A psychologist who has been appointed by the court to:

  • develop a parenting plan recommendation in a dissolution of marriage
  • a case of domestic violence
  • paternity matter involving the relationship of a child and a parent, including time-sharing of children

The psychologist can then make recommendations to the court about what is in the best interest of the child.

The psychologist who has been appointed by the court is presumed to be acting in good faith. The court will allow the psychologist’s recommendations if it determines that it meets the standards that  ‘reasonable psychologist would use to develop a parenting plan recommendation.’

Forensic Psychological Testing

In a custody battle chances are you have had a child custody evaluator or mental health professional evaluate you in relation to how you parent your child. You may have had what is called a Forensic Psychological Test. Psychological testing is a tool that is supposed to provide additional information about your parenting skills and abilities.

Unfair or Biased Forensic Psychologist Report

If you feel like the psychologist has not been fair or reasonable or bias you can file a legal action and petition the court to assign a new psychologist.  You must show good cause for the change.  This involves closely evaluating the forensic psychologist’s report.  When evaluating a forensic psychologist’s report it is not enough for your family law attorney to be familiar with the Family Law Rules of Procedure and Chapter 61.

To conduct an effective cross examination, your lawyer must also have a thorough understanding of Florida Administrative Code § 64B19-18.007.  This code section cannot be ignored as it governs the scope and methodology a psychologist is required to follow when conducting a court ordered parenting plan evaluation.

Florida Statute 61.13 is a comprehensive statute that largely governs what a Judge is required to follow when making child custody determinations. As discussed later in these FAQs, the statute contains multiple factors that the Court is supposed to follow when addressing child custody issues.

Florida Statute 61.13 also contains Florida’s public policy pertaining to each parent’s right to be involved with their children following divorce. That statute states: “It is the public policy of this state that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys, of childrearing. There is no presumption for or against the father or mother of the child or for or against any specific time-sharing schedule when creating or modifying the parenting plan of the child.” Florida State 61.13(2)(c)(1).

In the case of child custody adultery or other marital misconduct alone is not grounds to influence the court’s decision on child custody or parental responsibility.  However, although adultery is not listed as a factor, the court is required by law to investigate and consider the “moral fitness of the parents” when determining parental responsibility.  In most instances it must be shown that the affair has been detrimental to the child.

In regards to this the court may ask for more details of the adulterous activity and specifically how it has had a negative impact on the child.  Although rarely enforced Florida does have a criminal statute in place that considers adultery a crime.  However, when it is enforced a violation and arrest under the criminal statute may  affect divorce cases.

When determining parental responsibility, F.S. 61.13 states that the “moral fitness of the parents” should be investigated and considered. The most important aspect of the parent’s moral fitness is whether or not it has a negative impact on the child. Marital misconduct alone is not grounds to influence the court’s decision on parental responsibility. It must be shown that said conduct has been detrimental to the child. In other words, there must be a nexus between the immoral conduct and resulting detrimental impact on the child in most in most instances. F.S. 61.13 also indicates that if a parent has been convicted of a third degree felony or higher involving domestic violence there is a “rebuttable presumption of detriment to the child.”

The general set by the United Statutes Supreme Court is a grandparent or relative does not have any right to custody or access to a child. However, at least in Florida, a relative may seek temporary custody of a child if it is proven that a child has been abused, abandoned or neglected by a parent and the other parent is not available to care for the child. Also, certain relatives may obtain an Order giving them temporary custody of a child upon the consent of both of the child’s parents.

Shared Parental Responsibility in Florida

In Florida the law requires the court to order “shared parental responsibility” in every case “unless the court finds that shared parental responsibility would be detrimental to the child.”

So essentially this means that you and your spouse will both retain full parental rights and responsibilities with respect to your child and that you both must confer with each other so that major decisions affecting the welfare of your child will be determined jointly.

In turn a Parenting Plan is required in all cases involving time-sharing with minor children, even when timesharing is not in dispute.

Creating a Parenting Plan

A parenting plan is the written document known as a ‘Parenting Plan Agreement’ that outlines how both you and your spouse each will fulfill your “shared parental responsibility’ after your divorce.  It must include a time-sharing schedule which break downs the time-sharing arrangement each of you will have.  It also will include the type of parental rights and responsibilities  that you each will have with respect to making decisions for issues in a child’s life.

You will submit the parenting plan to the court for review. The court determines all matters relating to parenting and time-sharing of each minor child  in accordance with the best interests of the child. (Click Here for Best Interest of  the Child Factors) The court will take into account many considerations including your historic relationship, domestic violence and any other factors that are considered in the best interest of the child.

At a minimum, the Parenting Plan must describe in adequate detail:

  • How you and your ex-spouse will share and be responsible for the daily tasks associated with the upbringing of the child(ren),
  • The time-sharing schedule arrangements that specify the time that your child(ren) will spend with each of you
  • A designation of who will be responsible for any and all forms of health care and school-related matters
  • The methods and technologies that the parents will use to communicate with the child(ren).

What is time-sharing in Florida?

Time-sharing” is the legal term that Florida recently created to describe the amount of time that each parent spends with a child following a divorce. In the Florida Statutes “time-sharing” replaces what used to be referred to as “custody” or “visitation.”

 

The reason behind going from the terms of “custody” and “visitation” to “time-sharing” is to reflect that most parents (ideally) “share time” with their children with the other parent and do not merely “visit” their child.

A Parenting Plan Can Help in Reducing Conflict

When children are involved in divorce,  conflict can easily rear it’s ugly head. This can result in long-term emotional problems for your child. By setting out clear co-parenting guidelines and expectations a well thought out shared parenting plan can help to reduce future conflict. If you and your spouse can make it a priority to cooperate with each other it will benefit everyone in your family.

Parenting Plans are Not One Size Fits All

Every family has unique circumstances so there is not one cookie cutter parenting plan for every family.  One, you both need to think about your child’s relationship to each of you. For example your child may be more comfortable staying with one parent than the other, so you may have to be flexible and agree to spend either more or less time with the child.

Questions You Should Ask Before You Begin

  • How old is the child?
  • How mature is the child?
  • What is the child’s personality? Playful, Social, Withdrawn, Shy, Active?
  • What is the intensity level when they are mad? When they are happy?
  • How do they handle transition or change? (a new bed, new food, etc)
  • Is your child more attached to one parent than the other? If so how strongly?
  • Does your child have any special needs?
  • What are the child’s relationships with siblings and friends?
  • Do you and your spouse live close enough for frequent visits?
  • Do you or your spouse have any plans to move out of the city or state?
  • How flexible is your schedule?
  • Can you be consistent with your parenting time?
  • Will you need childcare and what will be the schedule?
  • How will you and your spouse meet when it is time for the exchange?
  • What kind of transportation will be used?
  • Do you and your spouse communicate well? Are you cooperative with each other?
  • Do you belong to any religion? If so how do you practice it as a family?
  • Has there been any domestic violence in your family?
  • Do either you or your spouse abuse any substances?
  • Do either of you have a mental illness?
  • What is your realistic availability to care for your child and meet their needs?

Domestic Violence and Child Abuse

It is Florida’s public policy that both you and your spouse share in the responsibility of raising your child and that your child has frequent and continued contact with both of you unless it is determined that doing so would be detrimental to the child. The court will consider evidence of domestic violence or child abuse as evidence of detriment to the child whether or not there is a conviction of any offense. This also includes evidence sexual violence, child abandonment or child neglect.

If this evidence is accepted by the court then it is considered a rebuttable presumption and that this is detrimental to the child. If the presumption is not rebutted after the convicted parent is advised by the court that the presumption exists, shared parental responsibility, including time-sharing with the child, and decisions made regarding the child, may not be granted to the convicted parent.

 

Do I Need a Lawyer When Creating and Filing a Parenting Plan?

Parenting plans can be created and filed without a lawyer. However, keep in mind there are times when a qualified family law attorney is absolutely necessary. If you or your spouse cannot agree on who has what responsibility and a time-sharing schedule then an attorney is needed to sort through the issues. This is especially important when either you or your spouse believes that shared responsibility will be detrimental to the child.  And because Florida Law by default requires ‘Shared Responsibility’ of both parents,  you must prove to the court why this would be detrimental to your child.

If you do decide to create and file your parenting plan agreement to the courts yourself, we recommend you use resources available on the web specific to Florida such as parenting plan templates and examples.

Shared Parental Responsibility in Florida

In Florida the law requires the court to order “shared parental responsibility” in every case “unless the court finds that shared parental responsibility would be detrimental to the child.”

So essentially this means that you and your spouse will both retain full parental rights and responsibilities with respect to your child and that you both must confer with each other so that major decisions affecting the welfare of your child will be determined jointly.

In turn a Parenting Plan is required in all cases involving time-sharing with minor children, even when timesharing is not in dispute.

Creating a Parenting Plan

A parenting plan is the written document known as a ‘Parenting Plan Agreement’ that outlines how both you and your spouse each will fulfill your “shared parental responsibility’ after your divorce.  It must include a time-sharing schedule which break downs the time-sharing arrangement each of you will have.  It also will include the type of parental rights and responsibilities  that you each will have with respect to making decisions for issues in a child’s life.

You will submit the parenting plan to the court for review. The court determines all matters relating to parenting and time-sharing of each minor child  in accordance with the best interests of the child. (Click Here for Best Interest of  the Child Factors) The court will take into account many considerations including your historic relationship, domestic violence and any other factors that are considered in the best interest of the child.

At a minimum, the Parenting Plan must describe in adequate detail:

  • How you and your ex-spouse will share and be responsible for the daily tasks associated with the upbringing of the child(ren),
  • The time-sharing schedule arrangements that specify the time that your child(ren) will spend with each of you
  • A designation of who will be responsible for any and all forms of health care and school-related matters
  • The methods and technologies that the parents will use to communicate with the child(ren).

What is time-sharing in Florida?

Time-sharing” is the legal term that Florida recently created to describe the amount of time that each parent spends with a child following a divorce. In the Florida Statutes “time-sharing” replaces what used to be referred to as “custody” or “visitation.”

 

The reason behind going from the terms of “custody” and “visitation” to “time-sharing” is to reflect that most parents (ideally) “share time” with their children with the other parent and do not merely “visit” their child.

A Parenting Plan Can Help in Reducing Conflict

When children are involved in divorce,  conflict can easily rear it’s ugly head. This can result in long-term emotional problems for your child. By setting out clear co-parenting guidelines and expectations a well thought out shared parenting plan can help to reduce future conflict. If you and your spouse can make it a priority to cooperate with each other it will benefit everyone in your family.

 

Parenting Plans are Not One Size Fits All

Every family has unique circumstances so there is not one cookie cutter parenting plan for every family.  One, you both need to think about your child’s relationship to each of you. For example your child may be more comfortable staying with one parent than the other, so you may have to be flexible and agree to spend either more or less time with the child.

Questions You Should Ask Before You Begin

  • How old is the child?
  • How mature is the child?
  • What is the child’s personality? Playful, Social, Withdrawn, Shy, Active?
  • What is the intensity level when they are mad? When they are happy?
  • How do they handle transition or change? (a new bed, new food, etc)
  • Is your child more attached to one parent than the other? If so how strongly?
  • Does your child have any special needs?
  • What are the child’s relationships with siblings and friends?
  • Do you and your spouse live close enough for frequent visits?
  • Do you or your spouse have any plans to move out of the city or state?
  • How flexible is your schedule?
  • Can you be consistent with your parenting time?
  • Will you need childcare and what will be the schedule?
  • How will you and your spouse meet when it is time for the exchange?
  • What kind of transportation will be used?
  • Do you and your spouse communicate well? Are you cooperative with each other?
  • Do you belong to any religion? If so how do you practice it as a family?
  • Has there been any domestic violence in your family?
  • Do either you or your spouse abuse any substances?
  • Do either of you have a mental illness?
  • What is your realistic availability to care for your child and meet their needs?

Domestic Violence and Child Abuse

It is Florida’s public policy that both you and your spouse share in the responsibility of raising your child and that your child has frequent and continued contact with both of you unless it is determined that doing so would be detrimental to the child. The court will consider evidence of domestic violence or child abuse as evidence of detriment to the child whether or not there is a conviction of any offense. This also includes evidence sexual violence, child abandonment or child neglect.

If this evidence is accepted by the court then it is considered a rebuttable presumption and that this is detrimental to the child. If the presumption is not rebutted after the convicted parent is advised by the court that the presumption exists, shared parental responsibility, including time-sharing with the child, and decisions made regarding the child, may not be granted to the convicted parent.

Do I Need a Lawyer When Creating and Filing a Parenting Plan?

Parenting plans can be created and filed without a lawyer. However, keep in mind there are times when a qualified family law attorney is absolutely necessary. If you or your spouse cannot agree on who has what responsibility and a time-sharing schedule then an attorney is needed to sort through the issues. This is especially important when either you or your spouse believes that shared responsibility will be detrimental to the child.  And because Florida Law by default requires ‘Shared Responsibility’ of both parents,  you must prove to the court why this would be detrimental to your child.

If you do decide to create and file your parenting plan agreement to the courts yourself, we recommend you use resources available on the web specific to Florida such as parenting plan templates and examples.

Shared Parental Responsibility in Florida

In Florida the law requires the court to order “shared parental responsibility” in every case “unless the court finds that shared parental responsibility would be detrimental to the child.”

So essentially this means that you and your spouse will both retain full parental rights and responsibilities with respect to your child and that you both must confer with each other so that major decisions affecting the welfare of your child will be determined jointly.

In turn a Parenting Plan is required in all cases involving time-sharing with minor children, even when timesharing is not in dispute.

Creating a Parenting Plan

A parenting plan is the written document known as a ‘Parenting Plan Agreement’ that outlines how both you and your spouse each will fulfill your “shared parental responsibility’ after your divorce.  It must include a time-sharing schedule which break downs the time-sharing arrangement each of you will have.  It also will include the type of parental rights and responsibilities  that you each will have with respect to making decisions for issues in a child’s life.

You will submit the parenting plan to the court for review. The court determines all matters relating to parenting and time-sharing of each minor child  in accordance with the best interests of the child. (Click Here for Best Interest of  the Child Factors) The court will take into account many considerations including your historic relationship, domestic violence and any other factors that are considered in the best interest of the child.

At a minimum, the Parenting Plan must describe in adequate detail:

  • How you and your ex-spouse will share and be responsible for the daily tasks associated with the upbringing of the child(ren),
  • The time-sharing schedule arrangements that specify the time that your child(ren) will spend with each of you
  • A designation of who will be responsible for any and all forms of health care and school-related matters
  • The methods and technologies that the parents will use to communicate with the child(ren).

What is time-sharing in Florida?

Time-sharing” is the legal term that Florida recently created to describe the amount of time that each parent spends with a child following a divorce. In the Florida Statutes “time-sharing” replaces what used to be referred to as “custody” or “visitation.”

The reason behind going from the terms of “custody” and “visitation” to “time-sharing” is to reflect that most parents (ideally) “share time” with their children with the other parent and do not merely “visit” their child.

A Parenting Plan Can Help in Reducing Conflict

When children are involved in divorce,  conflict can easily rear it’s ugly head. This can result in long-term emotional problems for your child. By setting out clear co-parenting guidelines and expectations a well thought out shared parenting plan can help to reduce future conflict. If you and your spouse can make it a priority to cooperate with each other it will benefit everyone in your family.

Parenting Plans are Not One Size Fits All

Every family has unique circumstances so there is not one cookie cutter parenting plan for every family.  One, you both need to think about your child’s relationship to each of you. For example your child may be more comfortable staying with one parent than the other, so you may have to be flexible and agree to spend either more or less time with the child.

Questions You Should Ask Before You Begin

  • How old is the child?
  • How mature is the child?
  • What is the child’s personality? Playful, Social, Withdrawn, Shy, Active?
  • What is the intensity level when they are mad? When they are happy?
  • How do they handle transition or change? (a new bed, new food, etc)
  • Is your child more attached to one parent than the other? If so how strongly?
  • Does your child have any special needs?
  • What are the child’s relationships with siblings and friends?
  • Do you and your spouse live close enough for frequent visits?
  • Do you or your spouse have any plans to move out of the city or state?
  • How flexible is your schedule?
  • Can you be consistent with your parenting time?
  • Will you need childcare and what will be the schedule?
  • How will you and your spouse meet when it is time for the exchange?
  • What kind of transportation will be used?
  • Do you and your spouse communicate well? Are you cooperative with each other?
  • Do you belong to any religion? If so how do you practice it as a family?
  • Has there been any domestic violence in your family?
  • Do either you or your spouse abuse any substances?
  • Do either of you have a mental illness?
  • What is your realistic availability to care for your child and meet their needs?

Domestic Violence and Child Abuse

It is Florida’s public policy that both you and your spouse share in the responsibility of raising your child and that your child has frequent and continued contact with both of you unless it is determined that doing so would be detrimental to the child. The court will consider evidence of domestic violence or child abuse as evidence of detriment to the child whether or not there is a conviction of any offense. This also includes evidence sexual violence, child abandonment or child neglect.

If this evidence is accepted by the court then it is considered a rebuttable presumption and that this is detrimental to the child. If the presumption is not rebutted after the convicted parent is advised by the court that the presumption exists, shared parental responsibility, including time-sharing with the child, and decisions made regarding the child, may not be granted to the convicted parent.

 

Do I Need a Lawyer When Creating and Filing a Parenting Plan?

Parenting plans can be created and filed without a lawyer. However, keep in mind there are times when a qualified family law attorney is absolutely necessary. If you or your spouse cannot agree on who has what responsibility and a time-sharing schedule then an attorney is needed to sort through the issues. This is especially important when either you or your spouse believes that shared responsibility will be detrimental to the child.  And because Florida Law by default requires ‘Shared Responsibility’ of both parents,  you must prove to the court why this would be detrimental to your child.

If you do decide to create and file your parenting plan agreement to the courts yourself, we recommend you use resources available on the web specific to Florida such as parenting plan templates and examples.

Ask Us A Question

Work with our divorce attorneys to help you explore all of your options, explain any ramifications of your decisions and reach a conclusion that is in the best interest of you and your family.

Main Office

The Law Offices of Nugent Zborowski

Palm Beach Divorce Lawyers

631 US-1, Suite 402,
North Palm Beach, FL 33408

Phone: (561) 844-1200

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