How Is Custody Established in a Florida Divorce or Florida Paternity Case?

Written by: Lenorae Atter, Attorney at Law

Florida divorce and paternity cases often revolve around the parent-child relationship and all factors related thereto, including parental responsibility. When someone comes into our Jacksonville office regarding a divorce or paternity case, often the question is whether she or he can have sole custody. As a divorce and family attorney, I have to educate clients on multiple things, including custody and what it actually means. Custody and having sole parental responsibility are two very different things because one deals with the big decisions regarding your child and the other deals with where the child will actually, physically reside.

Child custody and visitation was changed by the Florida legislature in recent years. The change was done for a number of reasons, the main reason being the contentious actions of parents for, “custody.” So, the legislature made a decision to change the concept to what is now known as, “time-sharing.” No, this is not your condo at Disney, but actually the terminology used because after your case, you are actually sharing time with your child and your child is sharing time with his/her other parent. Time-sharing is basically the same idea, but instead of having the archaic, “custody,” you may request majority time-sharing, meaning that you spend the majority of the time with the child. In some jurisdictions, Jacksonville not being one of them, the courts have presumed this to mean that parents should start out with equal time-sharing. However, often that concept is being overruled by the appellate courts.
When looking at which parent will have majority time-sharing, the court looks to certain factors like:

a. Which parent is more likely to help facilitate a health relationship between the child and other parent;

b. Which parent is more likely to provide a stable environment for the child;

c. What is the historical relationship of the parent and child; etc.

Once the majority time-sharing parent is decided, the court or the parents, if they negotiated an agreement, enter a time-sharing plan. The time-sharing plan defines the times the parents will each have the child, including holidays, the actual visitation schedule and the like.

Aside from custody issues, Florida recognizes that parents have a responsibility to the child and the court must make a determination as to how that responsibility will be divided. Typically, if both parents are fit and involved in the child’s life, or capable of being involved in the child’s life, then the court will award shared parental responsibility. This means that both parents share in the big decisions for the child, such as private or public school, orthodontic needs, school issues, etc. However, if one parent has been voluntarily absent from the child’s life, has a history of drug or alcohol abuse that impacts his/her ability to parent, or other such matters, then the court may award the other parent sole parental responsibility. Therefore, that parent may make all of the big decisions affecting the child without having to consult with the other parent. Once parental responsibility is established, the court requires a parenting plan be filed with the court, which lays out, more or less, the rules governing the parents while the child is a minor. Often, the parenting plan will put in a provision for how to proceed if they cannot reach an agreement.