New Florida Custody and Divorce Law

Also see: New Florida Custody Law Update 2013

There is big news in Florida child custody law! The Florida law that governs divorce, custody, and related family law matters is known as Chapter 61. This revision is a radical rewrite, 115 pages in length. It will affect the way cases are decided in the State of Florida. The effective date: October 1, 2008.

As we analyze this new statute we will add sections to this page.
Here are some of the highlights of the New Custody Laws:

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.” Go figure! Based on what we have heard, 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, based on what we have heard, this is an attempt to encourage courts to craft parenting arrangements allowing both parents a greater role in their children’s life.

Here is a provision from the new Custody Law that shows the spirit of this revision:

“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.”

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 (**with our comments):

“(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.

*** 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.

*** 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.

** 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.

** 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:

The judge:

“3.2. May order the custodial parent who did not provide time-sharing or did not properly exercise time-sharing under the time-sharing schedule to attend a the parenting course approved by the judicial circuit.;

4.3. May order the custodial parent who did not provide time-sharing or did not properly exercise time-sharing under the time-sharing schedule to do community service if the order will not interfere with the welfare of the child.; ”

** Notice the judges now have the ability to order community service as a punishment. This is new and nothing like it has ever existed in the statutes.

 

Child Support:  There are a few minor tweaks but child support will remain pretty much the same.

Myth on Rotating Custody: We hear a lot of people that claim the new law requires rotating custody.  Not True.  Timesharing of children will remain substantially the same for years to come.

Check back in this section as we learn more about this new Custody Statute

The Bottom Line: It will be years before the system fully digests and reacts to this new revision. For at least the next several years, Judges will be spending their time figuring out the true meaning of this rewrite of the law. For the same length of time, attorneys will be arguing on what the correct interpretation will be. But there will be one thing we can count on: child custody is about to go through some major changes – hopefully positive ones.

 

  • Michelle

    I am looking for opinions. My ex husband and myself disagree on the interpretation of our time sharing schedule that is court ordered. This is what it states; When the parents are using an alternating weekend plan and the holiday schedule would result in one parent having the child(ren) for three weekends in a row, the parents will exchange the following weekend, so that each has two weekends in a row before the regular alternating weekend pattern resumes.
    Can somebody elaborate on this for me?

    • HowardIken

      Sorry for being blunt, but it means what it says. The concern is that if you have weeks 1 and 3, and a holiday schedule would give you week 2, the result would be three weeks in a row. Your language would change that to give you weeks 1 and 2. Week 3 and 4 would go to the other parent. Then the normal schedule would resume.

  • Barbara

    if a parent that is time sharing there child breaks the court order and keeps the child from the other parent, what can or would the court do about that parent?

    • HowardIken

      Sorry for the delay. You would file a Motion for Contempt and call the judges office to schedule a 30 minute hearing

  • lovingfriend#1

    After the divorce is finalized, can the parent with primary custody take the child out of state to visit family? Also, when one parent has been out of work, lying repeatedly about non existent interviews, doing drugs (and likely dealing them) plus pawning or selling everything in sight to get cash for several years of the marriage, in addition to punching walls, smashing furniture and creating a fearful environment when cash wasn’t readily available can custody/visitation be hampered? If most bills have been late or unpaid and eviction process has taken place, can this affect a parent’s rights? I hope so. Parental influence on a child should be nothing but good for the sake of the child’s future.

    • HowardIken

      Yes, kids can always be taken on trips to visit family. The rest of this is very concerning. You may want to file for an injunction.

  • Cami

    Goodnight Mr. Howardlken, my 12 yr old son has had shared custody with his dad and I. With me being the primary custodial parent. My son now wants to have the choice of when to go to his dad’s house and how long he has to stay. What is the best process? He is in fear of his dad knowing that he feels this way and is in fear of his dad’s reaction…. Please advise. Thank you so much for helping all of us. God bless and favor you.

    • HowardIken

      Right this moment the law does not support a 12 yo making a decision not to see a parent. So the only thing to do is to discuss the situation between the three of you.

  • Cami

    I thought there was a law stating; if the child is of component age & sound mind, able to make sound judgement. They were allowed to speak to the judge themselves ….

    • HowardIken

      There is a law that sounds like that. But it does not allow a 12yo to completely make a decision. And most judges will not speak directly to children.

  • and68

    I have temp majority custody of my two daughters, 15, 17. Mom was the one that walked out on us, she has anger and control issues, my girls DO NOT want to go to mom or spend time with her for visitation (one evening a week and everyother weekend), at the moment I ask my girls to driver over to moms for visitation but they only stay a few min’s before coming home, this has been going on for 6 months now, the final divorce hearing is 5 weeks away, but in the temp hearing the judge would not allow my girls to testify in court about mom’s behavior towards them . Of course my soon to be EX is saying all things, I’ve brain washed them, etc. A couple of questions, what can happen to my girls if they finally tell me they will not go to mom’s ? Can the Ex only state her opinion and lies with out the girls testifying mom’s erratic behavior when they have visited her ? We live in FL.

  • Perez

    My final hearing for my divorce is in 2 weeks. My soon to be ex husband is trying to get sole custody of our son but hasn’t paid child support or seen him in 14 months. Does that count as child abandonment, and if so is there something I can file for that?

    • HowardIken

      I doubt that can happen from your description of the facts.

  • jmac

    Is there a legal age a child can make their own decision whom they want to live with in Florida? I heard 16 is that correct?

    • HowardIken

      I child never has the final say so

  • CourtOrderSchool

    In my parenting plan – it states that if my ex were to move from the residence in which the children are zoned, then my address will be used for school designation purposes. My ex did move and she ignored the parenting plan and then withdrew the children into her new school district. I have now been awarded a court order that the original parenting plan must be filed. My question: do public schools follow parenting plans and court orders, or do they look at something different to determine residence? I expect my ex will be looking for a loop hole and I am trying to cover my bases. I reside in Florida, thank you

    • mstone

      http://www.fldoe.org/ese/pdf/1b-stats.pdf

      Statute 1003.29 – Page 67
      I think this answers your needs, Howard?

    • HowardIken

      Yes, the info mstone referenced is correct. The answer is that schools do follow court orders – when they are clear and unambiguous. Some schools will dig into a parenting order to follow it. Others may need a followup order. In the end you will get your way. The only variable is how much effort it will take to get your way.

      • CourtOrderSchool

        Thank you Howard. I have been listening to some rhetoric that they (Pupil assignment) follow majority vs. minority time sharing (we are 60/40), and nothing else (including court orders). Not sure if you ever heard of anything like that? I appreciate the fast reply and renewed confidence that I am headed in the right direction.

    • CourtOrderSchool

      Thank you Howard. I have been listening to some rhetoric that they (Pupil assignment) follow majority vs. minority time sharing (we are 60/40), and nothing else (including court orders). Not sure if you ever heard of anything like that? I appreciate the fast reply and renewed confidence that I am headed in the right direction.

  • janeOdonel

    Howard, a follow up comment to the posting below. Once this person withdraws the child from the school and then enrolls he/she in the new school, what prevents the former spouse from just doing this all over again?

    • HowardIken

      Good question. A proper court order will be observed by all schools. As I said below, there are sometimes problems if the order or parenting plan is not clear. Those are the situations where we have to go back for a short hearing. Recently, I even had to hold a hearing and get an order telling the school NOT to interpret court orders – the exact opposite of this situation. So you really never know until you see how the school reacts. But ultimately everything can be fixed with an additional court order.

  • MarcentGr

    If my “x” violates a parenting plan, then ignores a judge order for enforcement of the parenting plan, what is next?

    • HowardIken

      Motion for Contempt. Thirty minute hearing. All under the same case number and same judge.

  • stutt

    Ex was sworn in over phone due to living in different state. Proposed child sharing plan was not agreed to by judge. Judge changed parenting plan to say exhibit 2, wrote what she felt was in best interest of children and initialed the change. Ex is now picking and choosing from original proposed plan stating that’s what he agreed to. Can he do that??

    • HowardIken

      It sounds like the judge entered an order on that parenting plan. No, he cannot pick and choose.

      • stutt

        Thank you. One more question. Holidays were orally agreed to and ex got every other holiday. This year is his Christmas and I have to meet him in SC. Ex is now going to proposed parenting plan which judge didn’t agree with stating he gets the entire winter break. If ex keeps children for 2 weeks instead of 1 week I physically cant be in SC on the date he says he is dropping them off. Ive tried talking to him but he says hes keeping them and now I don’t know what to do. This was orally agreed to by him and judge but not in writing. Can he choose to pick what the original proposed plan was which stated entire winter break?

        • HowardIken

          Prior oral agreements do not count.

  • firemedic226

    I work a 24 hour shift the days I am off I have my daughter. She is with me my first day and night and the following day until 530. This works out to be 50/50. The state only recognizes overnights. Is there a provision or statue that accommodates an abnormal schedule?

    • HowardIken

      Yes, there are exceptions. But those exceptions are not clearly defined in statute. An attorney must argue for a certain interpretation of the law. We offer free consultations in all of our office locations.

  • Shari Wolson

    I have a client, I am a tax preparer/tax consultant, we have a tricky situation I cannot seem to fine the information I need to help her. Situation: There is a Separation Agreement. There is “Family Support” but is not broken down for “Spousal Support” and “Child Support”. Also, the non-custodial parent seems to get to claim the three children. The wife received $ 42,818 ($1992 every two weeks) , for March 1 – December 31, 2013.The wife had the three children, homeschooled them. She did not realize she needed to file a Form 8332 to give the exemptions to noncustodial father. She has not signed the form yet. This Separation Agreement will cause her to owe $4478.

    This is not fair that she has to pay the price for a detail like this, can anything be done? We live in Florida.

    Thank you in advance for your assistance.

    • HowardIken

      Unallocated family support is always a potential problem. There are definite situations where “unallocated” can help. But this does not appear to be one of them. This would probably have to go back to court. It is possible a relatively simple Motion for Clarification will remedy the situation.

      • Shari Wolson

        Her husband is pushing hard for her to file either jointly or her to file MFS. In which case she loses. I asked her to get the Motion of Clarification. She is confused, scared and vulnerable. I told her I would file the extension so that we have time to get this straightened out. I feel for her. Is there anything else I can tell her to reassure her that the it will work out? I

        Another question – Is there a set amount in Florida for child support per child? Since there are three children, is there a calculation I can use that can give me an idea of what the separation of the support might look like. This may give her a bit of reassurance. My sister gets about $325 per month for her son, not sure that is appropriate, should be more. But is that a reasonable amount. What is child support actually suppose to cover each month?

        Thank you for your assistance. This is a great idea to help others. I might take this idea for my website. I really want to help others. This is amazingly helpful. Thanks.

        Shari Wolson
        The Tax Lady

  • John

    I have a parenting plan that currently gives me 90 days out of the year for time sharing. Recently the mother wanted a “break” because she told me she could not handle our child and gave me two months of custody where she was actually paying me support. The mother is Bi-Polar and has been sent to a mental hospital twice, once after the child was born. My lawyer told me it would be impossible to get that information into the court so nothing was ever done and I lost my relocation case. During this time, she found out she had cancer and has extended the “break”. Is there a time that if this child was to stay in my custody that the court would change the residency of the child to my state (I moved away from the childs’ home state) ? The child is 3.5 years old. Also, if a third party like a grandmother ends up taking care of the child more than the mother is that grounds for a change in custody/home state change?

    • HowardIken

      Sounds like you already have grounds for a change in custody. Jurisdiction would remain in Florida as long as either parent still lives there. The mental hospital info – I disagree. It is difficult but a judge can enter an order allowing discovery of the information. You just have to convince the judge in a hearing.

      • john

        Thanks for the quick response. Are you saying that because she handed him over for a “break” that is grounds for custody, or the mental hospital stuff? What about the third party watching the child. If it’s more than one or two times a week all the time, is that grounds for an unfit mother too?

        • HowardIken

          Not any one thing by itself. But it sounds to me like it all adds up to sufficient grounds. Of course that is always a two sided argument.

  • Christina

    I have a parenting plan in place with my childs father,it is in the court order that no one ouside of myself him and our parents can pick my daughter up from school.He recently went to the school and added a person ,i have know idea who this person is,to her pick up list.He also consistently ignores my calls when he has our daughter,and i only call once to see how her day was ,in the order it stipulates whomever is exercising timesharing must allow the child to communicate with the other parent.What steps can i take to change or get the court to do something about his total disregard of the parenting plan ?

  • David del Sol

    I have an issue with my ex wife we where communicating fine until she decided to tell me that our daughter got grounded when I had her for the weekend asked what she was doin let her know she was on my iPad told she wasn’t supposed to b on it when I took her home she got angry at me and when I told her that what happens at her house is her business not mine I haven’t seen my daughter for 5 weeks she says that my daughter according to her lawyer needs a room of her own can u please help thanks