How Is Child Custody Determined in Naples, Florida?

Last updated on April 10, 2022
Custody in Florida

In 2008 the Florida legislature abolished the concept of child custody in favor of the twin concepts of allocation of parenting time and allocation of decisional authority. Fla. Stat. Sec. 61.13.  This eliminated the victory of gaining full custody and the taboo of losing custody by reducing custody to its fundamental parts.

Allocation of parenting time is merely a schedule of when the child will spend time with each respective parent.  If one parent has the vast majority of the time with the child, that parent has de facto custody as per the old law.

Allocation of decisional authority is a listing of factors that each parent is responsible for making decisions for.  Often the parents are allocated “shared decision making” but in cases where the parents are not able to communicate and make decisions together, the court will allocated items exclusively to each parent.  For example, “Mother shall have decisional authority over the child’s education and travel while Father shall have decisional authority over the child’s extracurricular activities and health.”

Despite the division of custody into all of its respective parts,  the concept is still referred to as custody except when discussing how the statute will apply.

The determination of allocation of parenting time and allocation of decisional authority is typically done by agreement and then approved by the court.  If the parties cannot agree, the court will allocated parenting time and decisional authority to each respective parent.

If there are disagreements between the two parties about shared decision making, the court may not designate a referee, usually a relative, to decide between the two options. Schwieterman v Schwieterman, 114 So. 3d 984 (Fla 5th DCA 2012). The parties must return to court to resolve the dispute.  More frequently, mediation, is used as a venue to resolve the dispute.

If the parties present a decision to the court upon which they cannot agree themselves, the Florida court will consider the best interests of the child in making that decision.

One parent’s behavior may especially noxious to the point where it seems obvious that parent’s decision making should be curtailed or eliminated.  The bad behavior of this parent can and should be considered in modifying the allocation of decision making but the “best interests of the child” standard still governs the courts decision to allocate decision making.  This is best clarified in the example of “dad’s on drugs again. So, take away his custody.”  Drugs are bad but there is no automatic trigger that removes custody or decision making power.

If the parties cannot come to an agreement on custody matters, one party must file a petition for the court to allocate parenting time and/or decisional authority to themselves.  Holland v. Holland, 458 So. 2d 81 (Fla. 5th DCA 1984). You cannot merely go to the court and say, “We can’t work it out.”  Your issues and your request have to be written out in a petition to the court.

If a petition for custody is prepared and the other party does not respond, the court will still conduct an evidentiary hearing by asking you questions, apply the statutory factors and formulate a child custody arrangement in the absence of the other parent.  The absent party still needs to be provided of notice of this hearing it is not enough to simply default the other party like in any other kind of proceeding.

Incarcerated parents are entitled to participate in a custody proceeding by phone even if there is no possibility of them exercising any kind of custody.  Rose v. Ford, 861 So. 2d 490

When a court makes a final decision regarding custody, it is the common practice for the court to issue written findings on all the salient points it considered.  This allows for the next court that hears any future modifications to adequately understand the current custody order.

Final allocation orders have impacts beyond just parenting schedules.  In practice, final allocation orders will impact where both parents will live until the child turns 18.

A final decision is rarely ever final.  Should there ever be a substantial change in circumstances, either parent can petition the court for a change of parenting responsibilities and/or parenting time.

It must be noted that a significant side effect of parenting time allocation is that it will fundamentally effect the amount of child support the primary parent receives.  The more time the non-primary parent is allocated the less he or she has to pay in child support.

If you’re looking for a custody order and your child lives in Naples, Florida. Schedule an appointment at my office and then we’ll file the appropriate motions at the Collier County courthouse just 7 miles away.

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