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Child Custody in Florida

Child custody:  The first thing to know about child custody in Florida is that there is no child custody in Florida. The word "custody" and the words "primary residential parent" were abolished by statute many years ago.  Oftentimes, people come in and ask for custody of their children.  Although the words are no longer used, a case can be made to ask for significant time sharing or greater time sharing based on the particular circumstances of your case.


The presumption of 50/50 time sharing​:  Currently, under the state of the law, there is no presumption that children should spend equal time with both parents.  However, there is a push in the legislature to create this presumption and we are seeing more and more Court rulings which direct that the parent's time should be equal.  This is true even where the designation of the responsibilities for children during the marriage have not been equally shared.  


The statute:  Section 61.13, Florida Statutes, provides the language dictating what information needs to be presented in a case involving childrne.  An except of this statute is provided below:


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. A determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in 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.


The child's preference:  Oftentimes, we are asked at what age can a child decide where he or she wants to live?  The answer to that question is that there is no age where a child gets to decide.  If a child is a sufficient age and maturity, his or her desires can be considered as part of the factors listed above (see i).  However, in most cases, children are prohibited from testifying unless there is an Order granting their testimony for "good cause shown".  It is debatable whether the child's reasonable preference of where he or she wants to live would allow for "good cause" to have the child testify.  In most cases, an expert is appointed to present the child's desires, if appropriate.


The entire statute, 61.13, Florida Statute, can be found at www.flasenate.gov/Laws/Statutes/2011/61.13