For divorcing parents, a new Florida court ruling makes it harder for one parent to request ultimate authority to make decisions for the parties’ children.
Florida resolves custody issues for divorcing parents through a Parenting Plan. Put differently a Parenting Plan is a custody order. Parenting Plans have to address how divorced parents will handle important decisions for their children. In Florida this type of decision making is called “Parental Responsibility,” and it is a mandatory feature in every Parenting Plan. Under Florida law, a court must order Shared Parental Responsibility, unless the court makes specific findings that it would be detrimental to the children. “Detrimental,” is a high standard to meet, and if you are not sure it would apply to your situation, it probably does not. In other words, the court might have to order Shared Parental Responsibility, even if all things considered the court believes it would better to order on parent to have sole decision making.
However, even if Shared Parental Responsibility is appropriate, the Florida parenting law allows the court to order “Ultimate Decision Making Authority” based on the best interests of the child.
With Shared Parental Responsibility, the parents much communicate and reach an agreement on significant issues related to their children. If no agreement is reached, the parents are usually required to mediate the dispute. If mediation fails, then the issue is decided by a judge. With Ultimate Decision Making Authority, the parents are required to communicated regarding the issues, but if the parents are unable to agree, the parent with Ultimate Decision Making Authority decides.
In De La Fee v. De La Fee, No. 2D20-2635, FL 2d DCA (December 8, 2021), the trial court granted the parties Shared Parental Responsibility, but gave the mother Ultimate Decision Making Authority. Florida’s 2d District Court of Appeals reversed this decision, and ruled:
The trial court abused its discretion by granting Former Wife ultimate decision-making authority without making the statutorily required findings that shared parental responsibility would be detrimental to the children. The trial court may not have appreciated that giving one parent “tie-breaking” authority is tantamount to awarding sole parental responsibility, but the law confirms that this is so.
Why is this ruling important? Prior to the De La Fe ruling, I think most family law attorneys believed that it was hard overcome the presumption for Shared Parental Responsibility, but much easier to prevail when requesting Ultimate Decision Making Authority. This no longer appears to be the case.
