Fresh on October 1, 2021, Florida is changing the way courts award child custody to parents. Normally, the starting point deciding child custody, for parents getting divorced or determining paternity, is that each parent is entitled to some portion of custody of their children. There is not a presumption that the mother is entitled to sole custody. However, recent changes to Florida law have altered the courts decision-making process on child custody. Judges look to a laundry list circumstances to determine child time-sharing (i.e., child custody) that are in the best interests of the child. These factors are:
- 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.
- The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.
- 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.
- The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
- 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.
- The moral fitness of the parents.
- The mental and physical health of the parents.
- The home, school, and community record of the child.
- The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- The demonstrated capacity and disposition of each parent to participate and be involved in the child’s school and extracurricular activities.
- The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse.
- 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.
- The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs.
- Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.
However, before getting to these circumstances to apportion time-sharing, there are certain circumstances that create a presumption that a parent is not entitled to any time-sharing. Before the recent change in law, those circumstances were as follow:
- A parent has a domestic violence conviction.
- A parent is incarcerated.
In those situations, domestic violence conviction or incarceration, a parent must convince a judge and overcome the presumption that they should get some time-sharing. If they cannot, the judge will not give that parent any time-sharing. This is a so-called “rebuttable presumption.”
The Amendment to Florida has created a new circumstance for a “rebuttable presumption” that a parent is not entitled to time-sharing. That is when a parent has been convicted of a sex crime (a crime that triggers sex offender registration) and the parent was 18 years or age or older, and the victim was under the age of 18. While certainly a good thing on its face to protect children from harm, there are many circumstances where being convicted of a sex crime does not indicate a person is a pedophile or predator that should not be allowed contact with their child. Once specific example (that until recently was not a crime at all and the law still allows a defense against) is a consensual, sexual relationship between an 18-year-old and 17-year-old. Certainly, that’s not a “crime” that would create a risk or danger to a child. But because of this presumption, if a parent has such a conviction and wants some custody of their child, they now have a hill climb to get that custody. Climbing this hill requires a parent to prove two (2) things:
- They pose no significant risk of harm to the child; and
- time-sharing is in the best interests of the minor child.
Because of the complex nature of custody proceedings, a parent in this circumstance would be well advised to use the assistance of a lawyer specializing in family law and custody.