Child custody - basic terms
Child custody is determined by a Parenting Plan in Sarasota divorce and paternity cases. In other words, the term for child custody in Florida is a Parenting Plan.
Some parents want “custody” or “full custody” of their child. These terms really do not have meaning within the context of a Florida Parenting Plan. Here’s why:
- The relevant law in Florida simply does not use the word “custody.”
- In the past, child custody usually meant “legal custody,” which gave a parent decision making authority for major decisions concerning the child. For example, decisions about the child’s health, education, and religion. This concept of “legal custody” is now resolved through the “Parental Responsibility and Decision Making” section of a Parenting Plan. In most cases, a Parenting Plan will provide “Shared Parental Responsibility,” with “joint” decision making. (There are exceptions for parents with problems as discussed below).
- The term “physical custody” used to describe the parent who spent the most time with the child, under the terms of a custody order. No longer. Physical child custody is now handled through the “Time-Sharing Schedule” of a Parenting Plan. The Time-Sharing Schedule determines what days the child will be with be with each parent. According to the statute governing Time-Sharing, “it is the public policy of this state that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys, of childrearing.” This means that the old “every-other-weekend with dad” schedule is usually not appropriate. In the absence of problems, both parents should be able to request significant time with their children after the parents separate.
- The exceptions to the rule. Sadly there are child custody situations where one parent has significant impairments, such as a history of domestic violence, drug abuse, or disorders that prevent a parent from safely parenting his or her child. Florida law allows the court to consider these type of problems when ordering a Parenting Plan. For example, the court may eliminate Shared Parental Responsibility, and give one of the parents sole decision making. The court may place controls, such as supervised visitation, on a problem parent’s time with a child.
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Divorce is one of the ten adverse childhood experiences listed in the “ACE Test”, a test used to predict future mental and physical illness.
– There is no need to make things worse with a custody war
Child custody in a collaborative divorce
Divorce is hard on children. The best outcome for children with divorced parents is when parents are able cooperatively co-parent, and reach agreement on custody decisions. For those parents who find it easy to cooperate, I am linking to a blog post with my best advice to divorcing parents.
Even if an agreement cannot be reached at the start of a divorce case, there are many ways to resolve custody issues, without contested litigation. One of the best methods is to resolve custody disputes is the Collaborative Divorce process. In a Collaborative Divorce, the parties use a neutral mental health provider to assist them in developing a customized Parenting Plan. This allows for a very child-focused result. At the same time, the Collaborative Divorce process allows both parents to be heard, and discuss their concerns in a respectful environment. The process in and of itself can be a good introduction to cooperative co-parenting.
Child custody in a litigated divorce
If an agreement cannot be reached, the final option is custody litigation. This process is very expensive to litigate custody issues, and there is high emotional cost for both the parents and the children. It is almost always best for the children if their parents remain cooperative. However, in some cases litigation is necessary. When it is, the Court will consider the best interest of the child in developing a Parenting Plan, and will consider the following factors:
- The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required.
- The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.
- The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent
- The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
- The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of either parent with a child.
- The moral fitness of the parents.
- The mental and physical health of the parents.
- The home, school, and community record of the child.
- The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
- The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to, the child’s friends, teachers, medical care providers, daily activities, and favorite things.
- The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, and daily schedules for homework, meals, and bedtime.
- The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child.
- Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect, regardless of whether a prior or pending action relating to those issues has been brought. If the court accepts evidence of prior or pending actions regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect, the court must specifically acknowledge in writing that such evidence was considered when evaluating the best interests of the child.
- Evidence that either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect
- The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties.
- The demonstrated capacity and disposition of each parent to participate and be involved in the child’s school and extracurricular activities.
- The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse.
- The capacity and disposition of each parent to protect the child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child.
- The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs.
- Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.
Parenting Coordination - when you need more help
It’s best when parents agree to a parenting plan. However, sometimes additional help or is required. This can happen for any number of reasons, for example: the parties may be too bitter to negotiate; or if one party has a problem – for example a drug addiction; or when there are mental health issues that impact a parent’s ability to care for his or her child. “Parenting Coordination” is one means Florida attempts to solve this problem.
The Florida statute that authorizes parenting coordination states that parenting coordination “is to provide a child-focused alternative dispute resolution process whereby a parenting coordinator assists the parents in creating or implementing a parenting plan by facilitating the resolution of disputes between the parents by providing education, making recommendations, and, with the prior approval of the parents and the court, making limited decisions within the scope of the court’s order of referral.”
Unfortunately, like most statutes, the wording sounds like gobbledygook to non-lawyers. I think the best way to understand the purpose of parenting coordination is to describe how it works.
- Parenting coordination enables parents to work with a neutral third party to come up with a parenting plan to which both parents agree. A parenting coordinator cannot force a parent to agree to a permanent parenting plan.
- Parenting coordinators are experienced mental health professionals or attorneys, who are experienced in helping parents develop parenting plans that work in the real world.
- The process is child focused, and the parenting coordinator is neutral. So, hopefully the type of “position bargaining” that can occur in hard edged litigation will be eliminated. In other words, “tit for tat” bargaining is avoided. Instead, the focus is on what is best for the child, and what works best for the parents.
- I have found that parenting coordination works best when you have two decent parents, who for whatever reason, really dislike each other. That scenario can be a litigation “money pit” for the parents, that never ends, and is toxic to the child. A good parenting coordinator will get the parents headed in the right direction, the focus from the parents’ dislike of each other to what is best for the child.
- One “power” you can agree to give a parenting coordinator is limited decision making. Agreeing to provide the parenting coordinator with this power, may decrease conflict between the parties, and can dramatically reduce attorney fees in high conflict cases. For example, in a high conflict case, a change in a parent’s works schedule might make parts of a parenting plan impossible to follow. Rather than immediately litigate this problem, a parenting coordinator could be empowered to make limited decisions and resolve the problem – at least on a temporary basis. (You can always go to court and request a judicial review of the parenting coordinators decision).
- Parenting coordination does not go on forever. The longest “term” that a parenting coordinator can be appointed for is two years. The idea is that at some point the training wheels need to come off and the parenting need to move on from their conflict, and cooperative parent their child.
- The one warning I would make is that you are “inviting” a third party into the process. Because this invitation takes the form of a court order it is very difficult to “uninvite” a parenting coordinator once he or she has been appointed by the court. So, “know thyself.” Some folks have a hard time in a setting that places a high premium on verbal communication and cooperation skills. However, if you can focus on the best interest of your child, parenting coordination can be an excellent option.
If you would like to learn more about parenting coordination, I have provided the following links:
Links To Parenting Plans
I have provided the following links if you would like more information on Parenting Plans:
Selected Blog Posts
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