In Florida, child custody is a difficult concept. The law was changed in 2008 so what we used to refer to as “child custody” is now referred to as parenting time and parenting responsibilities. The concept of custody, who gets to see the child when and who makes the decisions child, still exist no matter what the Florida statutes say.
The concept of custody is especially useful when people who are not the biological parents, like grandparents are caring for the children.
So, to further your understanding of the various kinds of child custody that people refer to despite the new statute, I’ll outline the various types lawyers, courts and lay people refer to below:
- Temporary Custody.
Temporary custody is the allocation of parenting time and responsibilities at any time before a final order is entered. These temporary orders are temporary and cannot be considered by the court as requiring special holding consideration before the permanent order is entered. Hall v. Mall, 32 So. 3d 682 (Fla. 1st DCA 2010).
Temporary custody is immediately extinguished once a permanent order is entered. Any temporary orders that were entered essentially disappear once the permanent order is entered. This usually happens when the judgment of dissolution of marriage is entered (the divorce is officially granted).
- Custody by Final Judgment
When an order regarding child custody is entered as a final judgment, it is usually included in a Judgment for Dissolution or entered separately in the case of unmarried couples as an Agreed Allocation of Parenting Time And Responsibilities. This order will be final and extinguish all prior temporary orders. This order allows both parents to review one document that outlines all of the parties parenting time and responsibilities down to the (hopefully) smallest detail.
In reality, these orders are never final. The situation changes so much as the kids get older and the parents move on with their lives that the final orders can be modified upon any substantial change of circumstances. Florida courts aren’t even supposed to consider the old final orders unless “the facts and circumstances of the parties remain the same as when the decree was rendered” Eaton v. Easton, 238 So. 2d 166 (Fla. 4th DCA 1970).
- Shared or Joint Custody
Shared or Joint Custody is the preferred custody option under Florida law.
Under the 2008 statute that eliminated custody, Shared or Joint Custody still exists in the details of the required parenting plan.
In shared or joint custody, the decision making aspect of the parenting plan is shared between the two parties. As in, “all educational decisions shall be shared by the two parties.” The alternative is to have one parent making the decisions for each aspect of the child’s life.
Additionally, time is shared between the two parents. Whether it be every other weekend, Every other week, or (my favorite) 5-2-2-5, any distribution of parenting time between the two parents is essentially shared or joint custody.
Hopefully, when exercising shared or joint custody, the parents actually abandon using the parenting agreement on a day-to-day basis in favor of using open and direct communication between themselves in the best interests of their children.
A shared custody situation will impact child support as the time spent with a child is a factor when calculating child support.
- Rotating Custody
Rotating custody is the concept where parents split time with their children on a 50/50 basis. Usually, this turns into a one week on/one week off situation. The advantage is that the children enjoy equal time with each parent. The disadvantage is that the children don’t have an official home and shuttling between two homes becomes cumbersome.
Rotating custody can work in certain situations such as “older and more mature children, parents who live near each other or are willing to cooperate in lessening the impact of the changes in custody and a division of periods of custody which is related to actual events in the children’s lives, such as between school and holiday periods.” Bienvenu v. Bienvenu, 380 So. 2d 1164 (Fla. 3d DCA 1980).
Rotating custody does not work when it requires the children to switch schools such as ‘One year with mom in Naples and one year with Dad in Miami.’ “There is no evidence that this rotating school schedule is in the best interest of the child” Otto-Jones v. Jones, 69 So. 3d 986.
Even rotating children over long distances before they are in school has been held to be not in the best interests of the child. A.L.G. v. J.F.D., 85 So. 3d 527 (Fla. 2d DCA 2012)
If you and the other parent are in agreement as to a rotating schedule but it is long-distance, you will still need the approval of a judge to enter that schedule in the parenting agreement as an order.
- Split Custody
Split custody means separating siblings, one brother or sister with one parent and another brother or sister with the other parent.
Splitting up siblings is highly disfavored by the courts. Myrick v. Myrick, 523 So. 2d 172 (Fla. 2d DCA 1988)
The only way a split custody arrangement would ever be allowed by the courts is if there is a compelling circumstance that’s in the best interests of both children (For example: each goes to a special school near the parent with the respective custody). Even in this situation both parents will have to agree to the split custody before the courts will approve it.
- Full Custody.
While the term “Full Custody” is common on television and movies to further the plots of ridiculous situations like “The Brady Bunch” the term does not exist in Florida law. Another term for full custody is “sole custody”
Full custody is simply one parent having all the parenting time and all making all the decisions for the child. This is only granted in one of two situations: 1) The other parent is completely uninvolved in the child’s life and has no desire to be involved in the child’s life and 2) the other parent has been convicted of a domestic violence offense.
Even if one parent is granted all of the parenting time and responsibilities, the final order must specify what steps the other parent must take to invoke their parenting rights again. Grigsby v. Grigsby, 39 So. 3d 453 (Fla. 2d DCA 2010)
It is almost impossible to get full or sole custody in Florida if the other parent wants time with the child.
But, if you move away from the other parent with the child, you can effectively have full custody.
In lieu of thinking about parent-child relationships as “custody” it is best to refer to these concepts the way the new statute does: Parenting Time and Parenting Responsibilities. The new statute works better in outlining the day-to-day activities and responsibilities of the children and the parents. More importantly, the abandonment of the word custody removes the victory of receiving custody and the taboo of losing custody. Both of those concepts are clearly more about the parents’ egos than the children’s best interests.
Asking about custody is asking about a million issues involving parenting time and parenting decision making. Schedule a consultation with my Naples, Florida family law office to have all these questions answered by a Naples, Florida divorce lawyer.
