CUSTODY DISPUTES: WHEN CUSTODY REALLY ISN'T CUSTODY ANYMORE!
Florida Statute § 61, which governs Family Law, underwent a major revision in October of 2008. There will no longer be a "Primary Residential Parent" and a Secondary Residential Parent." The term "Custodial Parent" is also abolished (done away with). The new designation for both the Mother and Father is "Parent." This is an attempt to equalize the importance of both parents. The old terms understated the role the Secondary Parent played in the life of their children.
The term "Visitation Plan" has also been done away with. Now, the terms "Parenting Plan" and "Time-Sharing" will be used. Again, as attorneys, we understand this change to mean that there is an attempt to encourage courts to craft parenting arrangements allowing both parents a greater role in their children's life. Across the country, states are attempting to make divorces more therapeutic and less traumatizing for the children and the parents. Florida is one of the few states that have enacted the statute abolishing the customary terms "custody" and "visitation." The results of this change remain to be seen.
It is hoped that the statutory changes will cause battling parents in family law cases to reduce their fighting and attempt to cooperate more with each other for the benefit of the children. Time will tell the effects of no longer having "custody" when talking about the children. At the very least, this change will result in a transitional stage to cause individuals to start thinking about their children in a less proprietary fashion.
A potentially more important change is the requirement that judges, attorneys, and parties draft more detailed and robust parenting plans. Parenting plans have become far more detailed involving all issues of the children in their daily lives, in communication between the parents and the children, and other activities concerning the children. Previously, when the Marital Settlement Agreement and/or Final Judgment of Dissolution of Marriage have been vague in details in terms of children's issues, friction and court litigation were likely to continue at the same rate or at an even greater rate. Consequently, the immediate impact of this statute may be to lessen the amount of micromanaging litigation that goes on while the parties attempt to hammer out the finer details of issues concerning their children and their interactions with children, which were not adequately addressed in the original court proceedings.
Florida has taken a proactive role in moving away from traditional models and moved into a realm where both parents are on equal footing. Immediately, and ultimately, these changes should work for the benefit of Florida's children and their parents.
Here is a provision from the new Parenting Plan and Time-Sharing Law that shows the spirit of this revision:
(1) "Any parenting plan approved by the court must, at minimum, describe in adequate detail how the parents will share and be responsible for the daily tasks associated with the upbringing of the child, the time-sharing schedule arrangements that specify the time that the minor child will spend with each parent, a designation of who will be responsible for any and all forms of health care, school-related matters, other activities, and the methods and technologies that the parents will use to communicate with the child."
(2) The apparent intent of Parenting Plan requirements is to require a much more comprehensive plan for the parenting needs of children. Old visitation plans were frequently bare-bones and did not spell out specific needs of the child. The Florida Legislature and the Florida Bar Family Law Section designed this statute to ensure judges make a proper analysis of all sides of the parenting equation.
The new custody law revamps the facts a court will consider the following:
(3) For purposes of establishing or modifying parental responsibility and creating, developing, approving, or modifying a parenting plan, including a time-sharing schedule, which governs each parent's relationship with his or her minor child and the relationship between each parent with regard to his or her minor child, the best interest of the child shall be the primary consideration. Determination of the best interests of the child shall be made by evaluating all of the factors affecting the welfare and interests of the minor child, 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.
Note: This is similar to the old factor with the addition of "to be reasonable when changes are required." A frequent problem has been the lack of reasonableness and flexibility of parents.
(b) The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.
Note the term: "including the extent to which parental responsibilities will be delegated to third parties." This attempts to solve situations where a child is always dropped off to grandma.
(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.
Note: An attempt to make parenting plans more responsive to long-distance relationships. More parents living in geographically distant areas and old parenting plans did not recognize this fact.
(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.
(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.
Note: We presume this is targeted at the parents that falsely file a Domestic Violence Injunction to gain an advantage in their divorce filing.
(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.
Note: This factor embraces the developing expert opinions on child development. Children have different needs at different ages. The new statute encourages judges to take this new research into account when imposing a parenting plan.
(t) Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.
Here is something we found very interesting. The statute gives judges several powerful tools to correct parents that interfere with the other parent's time with their child. The new powers given to the judges are potent and it remains to be seen if and when the judges start using this provision:
Child Support: There are a few minor tweaks but child support will remain pretty much the same.
If you are thinking about divorce and want more information, please visit our website or call the office to schedule your initial consultation. We employ a client based approach, which means that we are selective in the cases we take so that we can be available to our clients. We spend time with you to thoroughly understand the facts of your case, so that we can provide you with a comprehensive and realistic legal evaluation. Our process begins with a half-hour low-cost consultation. Call for your consultation today.
