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Florida Child Custody Questions

Florida family law attorneys provide answers to frequently asked questions about child custody in Florida.

Who will get custody of our child?

There is no such term as “custody” in the Florida Statutes nor is there a primary or secondary residential parent designation in the Florida Statutes. In Florida, both parents have “time-sharing” with their children. The court will order a time-sharing schedule that is in the best interests of the children taking into consideration factors enumerated in §61.13, Florida Statutes.

Related Article: Will I Get Custody?

What is joint custody? What is sole custody?

Again, in Florida, there is no such legal concept as “custody” of children. Terms that reflect the type of time-sharing schedule include “majority time-sharing” and “equal time-sharing.”

Related Article: Joint Physical Custody vs. Joint Legal Custody

If both parents share custody does anyone pay child support?

If both parents enjoy equal time-sharing, then child support is still calculated using the Child Support Guidelines Worksheet, which is dependent on the parties income, percentage time-sharing (only overnights are used for purposes of establishing the percentages), health insurance, and costs of daycare and uncovered medical expenses. As the payor’s percentage of time-sharing increases, the less he or she will pay in child support generally.

Related Article: Who Pays Child Support If We Share Custody?

Florida Child Support Calculator.

Can a parent refuse to allow visitation if child support is not paid?

Absolutely not. Time-sharing and child support are treated separate and apart from each other by the Florida courts except as it relates to calculating child support.

Related Article: Options If Denied Parenting Time Over Owed Child Support

When can my child decide which parent to live with?

Pursuant to §61.13, Florida Statutes, one of the many factors the court considers when ordering a parenting plan is, “the reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.”

Related Article: Choosing Mom or Dad: Can A Child Choose Where To Live?

Do grandparents have custody and visitation rights?

A new law in Florida relating to members of the military states that if a parent is activated, deployed, or temporarily assigned to military service on orders in excess of 90 days, the parent may designate a family member, a stepparent, or a relative of the child by marriage to engage in time-sharing on the parent’s behalf.

So if the parent in the military designates a grandparent to time-share in his or her stead, the court would enforce such a designation. The Florida Supreme Court has consistently held all statutes that have attempted to compel visitation or custody with a grandparent based solely on the best interest of the child standard to be unconstitutional.

Related Article: What Visitation Rights Do Grandparents Have?

What is a parenting plan, and do I need one?

A parenting plan is a document, or information included in a settlement agreement, that outlines how the parents will parent their children following a dissolution of marriage. Such provisions include, but are not limited to, the time-sharing schedule, holiday time-sharing schedule, provisions for extra-curricular activities, education, child care, contact between the parents, contact between the children and parents, and out-of-state (or country) travel. In every action for paternity or dissolution of marriage in which there are common children, the court will establish a parenting plan.

Related Article: What Should Be Covered In A Parenting Plan?

If my separation agreement includes custody/support can it be included in the divorce decree?

Provisions in a separation agreement regarding child support and parenting can be included in the final judgment for dissolution of marriage. However, both child support and the parenting plan can be modified with a substantial change in circumstances and the requested modification is in the best interests of the children. Furthermore, the court always has the discretion to overrule agreed upon terms based on the best interests of the children.

What can I expect from temporary orders?

Temporary orders are orders that are put in place during the pendency of the paternity action or dissolution of marriage action. Temporary orders can include temporary child support, time-sharing, alimony, exclusive use and possession of a marital home, and attorney’s fees.

Related Article: Preparing For A Temporary Orders Hearing

When will child custody be decided?

The time-sharing schedule can be decided on a temporary basis and at the final hearing.

Related Article: How Long Should It Take To Serve Custody Papers?

When can I modify custody?

Parents can petition to modify the parenting plan at any time with a showing that there has been a material, unanticipated substantial change in circumstances from the date the parenting plan was ordered and the requested modification is the best interests of the children.

Related Article: Can Parents File For A Custody Modification At Any Time?

What if we cannot agree on a custody arrangement?

If the parents cannot agree on a time-sharing schedule, then the court will order a time-sharing schedule based on the best interests of the children.

What if we cannot agree on a custody arrangement?

If the parents cannot agree on a time-sharing schedule, then the court will order a time-sharing schedule based on the best interests of the children.

What is an ex parte order?

An ex parte order is one that is made without notifying the other party or giving limited notice. The court will generally consider the motion and rule without a hearing.

Related Article: The Nuclear Weapon Of Divorce: Orders Of Protection

How is custody decided?

The court will establish a parenting plan, including a time-sharing schedule, by considering the factors set forth in §61.13, Florida Statutes, and determining what is in the children’s best interests.

Related Article: The Factors Courts Consider When Determining Child Custody

How can I increase my chances at getting a larger custody agreement?

You should be involved in your children’s lives, including their education, medical care, and extracurricular activities. You should promote their relationship with the other parent and be flexible with time-sharing when appropriate. You should also have provisions for children in your home, including proper sleep accommodations, child-proofing, age-appropriate furnishings in their bedrooms, and age-appropriate toys and games.

You should not cancel your scheduled time-sharing absent extraordinary circumstances. You should develop and/or maintain a routine when you have your children with regard to play time, homework, dinner, getting ready for bed, and bed time.

Related Article: Custody Gameplan: Building A Case For Equal Custody

What is visitation?

There is no such legal term as “visitation” with regard to your children. A parent has “time-sharing” with their children and time-sharing is simply spending time with them according to a schedule pursuant to court order or agreement by the parents.

Can a judge order supervised visitation or no visitation?

In extreme cases, the judge can order supervised time-sharing or no time-sharing at all. Such cases include parents who suffer from severe and untreated mental health disorders, parents who are active in their addiction of drugs or alcohol, and/or parents who commit violent acts against the other parent or the children or otherwise neglect their children. In severe cases, the judge may refer the case to child protective services for intervention.

Do Courts favor the mother over the father?

Historically, courts have favored mothers with regard to caring for children particularly with children in their “tender years.” However, Florida courts have abolished the tender years doctrine and the statutes do not favor one parent over the other based on gender.

Related Article: 5 Challenges Divorced Dads Must Overcome

Can I collect my own evidence to use if my custody case goes to court?

You should consult with your attorney who is experienced in parenting plan trials with respect to evidence supporting your position and the best way to obtain and introduce that evidence in court.

Do I need to use a Guardian ad Litem/Custody Evaluator?

The court may order a Guardian ad Litem to advocate on behalf of children in court and the court may order a social investigation and parenting plan recommendation to be conducted by a mental health professional. Generally, these tools are recommended when it is certain that the court will need to establish the parenting plan.

Related Article: Using A Guardian Ad Litem In A Custody Case

Will my child need to appear in court?

Generally, children never appear or testify in court. In fact, you must seek special permission by the court to allow a child to testify, and the court rarely grants permission.

What is the Parental Kidnapping Prevention Act?

The PKPA is a federal law that tells courts when they must honor and enforce “custody” determinations issued by courts in other states. This act was established to deter interstate conflicts, deter interstate abductions, and encourage cooperation between states about interstate custody matters. Generally, a state court must give full faith and credit to the court that initially established “custody.” The act also outlines when a different state may assume jurisdiction over the matter.

Related Article: 13 Ways To Prevent Parental Kidnapping

What if my wife tries to move the kids out of state?

This question depends on whether there is a pending paternity or dissolution of marriage action. If your spouse or mother of a child common to you tries to move the child out of state, it is critical that you act quickly and either file the appropriate petition so the court obtains jurisdiction and can make appropriate orders or bring the relocation to the court’s attention in a matter already pending.

Related Article: Child Custody Laws: How To Block A Move Out Of State

Can a parent change the child’s last name without the other parent’s permission?

A parent who wants to change a child’s last name must file a petition with the court and serve the other parent with the petition by service of process. If the other parent objects, then there will be a court hearing. The court will order a name change upon a showing that it is in the best interests of the child.

Related Article: What Is The Process For Changing My Child’s Last Name?

If I have custody, will I receive child support?

A parent who has majority time-sharing will generally receive child support. Child support is calculated using the Child Support Guidelines Worksheet, the statutory formula factors in the parties’ income, percentage time-share, health insurance, and costs of daycare and uncovered medical expenses.

Related Article: How To Calculate Child Support

Frank Murphy

Edited By Frank Murphy

Chief Compliance Officer
Frank Murphy

Frank Murphy is the Chief Compliance Officer and an Executive Partner at Cordell & Cordell. His responsibilities include oversight of the Firm’s compliance with Legal and Ethical obligations as well as contributing to the day-to-day operations of the Firm as an Executive Partner.

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