Child custody or child time-sharing policy in the state of Florida stems essentially from this part of the statue:
“It is the public policy of this state that each minor child has a 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.” Fla. Stat. Sec 61.13(2)(c)(1)
This policy essentially eliminates the old concept of “sole custody” or “full custody” where one parent is awarded all the decision-making for the child and has all of the time with the child.
This elimination of “custody” is largely symbolic and removes the incentive to gain a victory by gaining custody and the taboo of “losing custody”.
In lieu of this award the courts ask the parents to create a “parenting plan.”
“A parenting plan approved by the court must, at a minimum:
1. Describe in adequate detail how the parents will share and be responsible for the daily tasks associated with the upbringing of the child;
2. Include the time-sharing schedule arrangements that specify the time that the minor child will spend with each parent;
3. Designate who will be responsible for:
a. Any and all forms of health care. If the court orders shared parental responsibility over health care decisions, the parenting plan must provide that either parent may consent to mental health treatment for the child.
b. School-related matters, including the address to be used for school-boundary determination and registration.
c. Other activities; and
4. Describe in adequate detail the methods and technologies that the parents will use to communicate with the child.” Fla. Stat. Sec. 61.13.(2)(b)
The filing for parenting time should be made in the jurisdiction where the child lives or where the underlying divorce or parenting action was filed. If the child lives in Naples, Florida or you have an existing case in Collier County, you must file in Collier County.
The court will then approve the parenting plan ensuring that it is in “the child’s best interests” Fla. Stat. Sec. 61.13(2)(c)
It may seem that getting “sole custody” is impossible but the statute does allow for it under a very narrow circumstance:
“The court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child. Evidence that a parent has been convicted of a misdemeanor of the first degree or higher involving domestic violence, as defined in s. 741.28 and chapter 775, or meets the criteria of s. 39.806(1)(d), creates a rebuttable presumption of detriment 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.” Fla. Stat. Sec 61.13(2)(c)(2)
So, if a parent is convicted of a domestic violence crime, the other parent automatically gets sole custody. The convicted parent then has to rebut the presumption that having parenting decisions and parenting time is not in the best interests of the child. This is not an especially difficult challenge because the default assumption is that involvement of both parents is in the best interests of the child.
If there’s not a domestic violence conviction the parent wanting to eliminate parenting time and/or parenting decisions of the other parent must prove that the detrimental qualities of the other parent outweigh the interest in having that parent in the child’s life. This is a very difficult test. It usually requires that the other parent have a substance abuse problem or serious mental illness.
Even if a parent manages to get sole custody or sole parenting responsibilities and sole parenting time, the court is required to specify the steps the other parent must take in order to regain shared parenting status. Grigsby vs. Grigsby, 39 So. 3d 453 (Fla. 2d DCA 2010)
If the other parent has abandoned the child or made no effort to exercise parenting time, a default finding of sole custody can be obtained. It’s very difficult for a court to deny a petition that is not answered
In conclusion, in Florida, when the other parent doesn’t abandon the child, sole custody is rare and even when it’s granted, it is easily undone.
If you read this far, you’re probably disappointed that sole custody isn’t really a viable option. Don’t worry, you still have lots options to protect your child. Contact my Naples, Florida family law office and schedule a free consultation with a family law lawyer.
