What does “Child Custody” mean in Naples, Florida? From a very broad perspective, the Natural Guardians statute in Florida governs what people think of as custody, or at least how custody is initially determined in Florida.
If you are married to your spouse you have joint custody per statute, “The parents jointly are the natural guardians of their own children and of their adopted children, during minority” Fla. Stat. Sect 744.301.
Furthermore, “If one parent dies, the surviving parent remains the sole natural guardian even if he or she remarries.” Fla. Stat. Sect 744.301.
Divorce is contemplated by the statute but not elaborated upon much except to say, “If the marriage between the parents is dissolved, the natural guardianship belongs to the parent to whom sole parental responsibility has been granted, or if the parents have been granted shared parental responsibility, both continue as natural guardians.” Fla. Stat. Sect 744.301. Upon filing a divorce action, the divorce statute takes over from the default assumption that both parents have joint custody.
If the parents aren’t married, then the mother has custody until further order of court. “The mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child unless the court enters an order stating otherwise.” Fla. Stat. Sect 744.301.
Child custody can be determined by Florida courts for children who live in Florida at the time of the filing of whatever action was filed to determine custody. Or, if the child is no longer in Florida, a Florida court can still determine the custody of that child if the child’s home state was Florida within the last 6 months. Fla. Stat. Sec. 61.514
More specifically, to pursue child custody in Naples, Florida the children, themselves, must live in Collier County not just one of the parents.
Child custody, as in the right to determine of how to raise your children has been found to be a fundamental constitutional right per the Supreme Court of the United States. Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054.
While the term “custody” is still used in Florida when referring to guardianship issues (when anyone but the parents is acting as the custodian of the child), the divorce law in Florida has completely eliminated the word “custody” from its statutes. This has been a common trend throughout the United States in order to take the power and taboo of having or losing custody away from the parties and better serve the best interests of the child. In my experience this has been a wonderful development as the public image of having “lost custody” is such a taboo that parties will often fight for the title of custody rather than for the best interests of the child.
If the parents disagree about the custody or “parenting plan” of the children, the matter will be resolved by the courts. The procedure the courts use for determining the parenting plan is the same whether the parents of the child were married or not. Determining the parenting time between two parents will be discussed in another article.
If a parent neglects, abuses or abandons a child the state, a relative, or even a friend or acquaintance can bring an action to terminate the parental rights, custody, and place the child in foster care or adoption proceedings. This is obviously such an extreme solution that very strict requirements must be met if custody is to be permanently removed from a parent as custody is that parent’s fundamental constitutional right.
Custody in Florida can obviously mean many things from total control of the child’s life to having significant parenting time. It’s not as simple as asking a judge, “Please give me custody.” A specific parenting schedule and listing of parenting responsibilities is necessary that goes far beyond filling out a form and checking boxes. Your kids should be the most important thing in your life so spend the extra time and expense to make sure the document governing their parenting is done properly.
Contact my Naples, Florida office to find out what your options are with your kids. You’ll feel better when you know what will happen and what can happen in your pending parentage or divorce case.