As you read through this book, you will be introduced to topics such as:

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1 Introduction Few situations are more gut-wrenchingly painful for a parent than a child custody dispute that ends up being decided in a courtroom. The rules and procedures established by legislators and applied by judges cannot remove the emotional trauma that parents and children go through when mom and dad make the decision to live apart from each other. Understanding how the courts and society perceive and handle child custody issues is an important step toward being able to navigate your way through the process. The primary thing to keep in mind as you read through this book is that you have rights and obligations as a parent that Florida law will help you to maintain even after you and your spouse or partner go your separate ways. As you read through this book, you will be introduced to topics such as: Time-sharing schedules The principle of best interests of the child Parental rights and the relocation of a child The rights of putative fathers Grandparents' rights Every effort will be made to remove some of the mystery surrounding the process and procedures in a child custody dispute including a discussion of some of the factors that may influence a judge's decision. Although most wedding ceremonies include the couple's pledge to remain together "till death do us part," the harsh reality is that many marriages and relationships end. According to a study by the Bureau of Labor Statistics of the United States Department of Labor, 42 percent of couples married before reaching 46 years of age saw their marriages end in divorce. If you are in that 42 percent group and have young children, the information that follows may help you to avoid some of the stress and anxiety that divorce, breakups and child custody can offer. Florida Breaks with Tradition Traditional child custody laws that continue to be the rule in many states have focused on awarding custody to one parent with visitation granted to the other. The problem with traditional arrangements has been that the custodial parent was usually the one granted the authority to make health, education and other important decisions having to do with the child's welfare. Page 1 of 15

2 The noncustodial parent, unless he or she had an attorney with the foresight and skills to negotiate or win concessions, was usually the one stripped of parenting duties. This was not always taken as a good thing by the custodial parent. In many instances, the custodial parent was not jumping for joy at the prospect of being cast in the role of decision maker and sole caregiver while the other parent enjoyed visiting with the children without any of the parental responsibilities. Fortunately, some states, including Florida, have broken away from the traditional view of the role of parents. Florida recognizes that children benefit from having frequent and ongoing contact with both parents, so it encourages parents, lawyers and judges to strive for a sharing of the rights, responsibilities and benefits of raising children. Exactly how this is accomplished will be covered in more detail later in this book. It is difficult to write about the relationship between a parent and his or her child without letting the "custody" word slip in every once and a while. Even some of the official websites of Florida government agencies refer to custody determinations or custody orders. Regardless of the terminology that is used, the old concept of one person having full parental control and care over a child while the other parent is given a visitation schedule no longer exists in Florida. Time-Sharing Plans and Letting Go of Sterotypes The overriding consideration in any agreement or court order concerning parenting arrangement is something the state refers to as "best interests of the child." Toward that end, the long-held general belief that one parent was better suited to be the custodial parent depending upon the age or gender of the child has been eliminated in Florida. The law specifically states that such presumptions no longer have a place in determining the best interests of a child. The new concept in raising children after a divorce or parental breakup is the time-sharing plan or time-sharing schedule. Once again, the goal is to maintain the parent-child relationship, and the best way to accomplish this is by ensuring that both parents are involved in the child's life as parents and not as just a visitor. We'll discuss time-sharing plans in more detail later on. How Custody Issues Arise The most common way in which child custody comes into play is in a court proceeding in which the parents seek to terminate their marriage through a formal divorce or simply by living apart from each other without the formalities of court proceedings. The court hearing a divorce case would also be the one to decide the custody issue, but problems may arise when the parents do not file for dissolution of the marriage. Page 2 of 15

3 The danger associated with a couple electing to live apart without officially terminating the marriage is the status of their relationship with their children. When mom and dad decide to live apart for a while, they each retain equal rights and responsibilities concerning their children. Unless they can work out details about living arrangements, support, visitation and decisionmaking between themselves, neither of them has greater rights than the other until a court makes that determination. If the parents are married and are living apart without starting a court action affecting the marriage, a custody proceeding may be commenced in the circuit court where the child resides. The only issues presented to the court would be those affecting the relationship between the child and the parents, including custody, visitation and support. Role of the Putative Father and the Presumption of Legitimacy The process of deciding custody issues becomes a little more complicated if the parents of the child were never married and the identity of the father has not been established legally. A paternity proceeding must be started in the circuit court in which the child resides for an order to legally identify the father. Paternity must be established before a court may deal with parenting plans, time-sharing arrangements and child support. While on the subject of paternity, there is a presumption of legitimacy under Florida law for a child born to a married couple. The husband has all of the rights and obligations of being the child's father even if another man were to come forward and claim to be the biological parent. This presumption of legitimacy is a strong one that is difficult to overcome if the husband claims paternity. The presumption may be overcome in a situation where the husband denies being the father and his claim is supported by scientific evidence such as a DNA test. Temporary Child Custody Orders in Domestic Violence Cases A petition for an injunction for protection is another situation in which child custody issues may arise. An injunction for protection is a court order, usually requested in cases of domestic violence, granted to protect someone from alleged acts or threats of violence. The injunction may order the offender to remain away from the victim and, in cases where the parties have minor children, it may even grant temporary custody. Be mindful that the custody determination is only for as long as the injunction is in force. Termination of the injunction also terminates the custody order. Petitioning for Child Custody Page 3 of 15

4 An agreement that is negotiated between the parents who must live under its terms is frequently a better solution to a custody dispute than a court proceeding in which a judge imposes terms upon the parties. Custody agreements, should address the two key issues in any custody arrangement: Parental Responsibility Time-sharing Parental Responsibility When the parents are no longer living together, it is essential that a parenting plan include within it provisions as to how the day-to-day decision-making responsibilities that are associated with raising a child are to be handled. The parents or the court must decide who will be responsible for decisions such as schooling, health care and the myriad of other issues that may arise when raising a child. The responsibility for making decisions may be shared between the parents or placed solely in the hands of just one of them. The statute favors shared parental responsibility as being in the best interest of the child; however, courts have discretion to award sole parental responsibility to one of the parents if it finds that doing otherwise would be detrimental to the child. For example, a conviction of one of the parents for committing certain acts of domestic violence creates a rebuttable presumption that awarding that parent shared parental responsibility would be detrimental to the child. The parent with the conviction must be advised of the presumption by the court hearing the custody case and given an opportunity to rebut it. If the presumption is not rebutted, that parent may not be given shared parental responsibility, and time-sharing cannot be granted unless the court is satisfied that the child and the other parent are not placed in harm's way by any orders of the court. Even if a parent has not been convicted of domestic violence, judges may still consider evidence of such incidents in deciding if a parenting plan is in the best interests of a child. Courts will take into consideration the preferences of the parents regarding the allocation of parental responsibility. For instance, a parent who is a teacher might be in a better position to make decisions concerning a child's education than the other parent. Granting that parent authority to make education decisions might be deemed in the best interests of the child by the court Sole Parental Responsibility If a judge finds it to be in a child's best interests, he or she may order that only one parent shall have responsibility for making decisions regarding the child. Sole parental responsibility may be granted regardless of whether or not the court also grants time-sharing to the parent excluded from the decision-making process. Page 4 of 15

5 Unless a judge specifically issues an order to the contrary, each parent has an equal right to access to a child's records, including dental, medical and school records. This is so even if only one of the parents has been granted sole parental responsibility. Access to the child's records must be equally granted by health care and school officials to each parent. Neither parent has the right to interfere in the other parent's right to access. The rights of access to a child's records includes the right of a parent to communicate with teachers, school officials and health care providers. This means that school officials may not deny one parent the right to a conference with a child's teacher if such access was given to the other parent A limitation to access to a child's records may only be restricted by a court order. This would include a restriction contained in a domestic violence injunction. Getting Started on the Road to Resolving a Custody Dispute Whether the parents reach a mutually acceptable written agreement about custody or force a judge to decide the matter after a hearing, the process of dispute resolution begins with the creation of a parenting plan. All parenting plans, even those contained in an agreement negotiated between the parents, but be approved by a judge. Parenting plans should describe the daily activities and needs of the child and the manner in which he parents will meet them. A parenting plan should, at the very least, contain the following: The daily needs of the child and the manner in which those needs will be met. This might, depending upon the particular circumstances of a case, include health care needs, education and school-related activities, and other activities of the child A time-sharing schedule detailing how time with the child will be split between the parents How the parents plan to communicate with the child and with each other How responsibilities associated with raising the child will be divided between the parents Parent Education and Family Stabilization The start of the custody dispute resolution process begins with a four-hour course required by Florida Statute The course is designed to educate parents about the consequences of the dissolution of a marriage on children and their parents. There are many providers throughout the state authorized to offer the course in order to make taking it more convenient. Page 5 of 15

6 As far as assistance with preparing a parenting plan, some circuit courts in Florida offer help to parents. Probably the best resource for information about child custody and parenting plans is a family law attorney who is knowledgeable of the law and has experience handling cases involving disputes over time-sharing and parental responsibility. Evaluating the Best Interests of the Child Clearly, the legislative emphasis on fostering a relationship between parents and their children even in the face of discord between the adults hinges on judges identifying what is in a child's best interest. Fortunately, the state has provided judges with a list of factors for them to take into consideration when deciding on a parenting plan, time-sharing schedule or division of parental responsibility. Factors Judges May Take Into Consideration Florida law makes it clear that judges have broad discretion in approving custody arrangements or in deciding whether existing arrangements should be modified. The long list of factors for judges to consider in determining what is in the best interests of a child in a particular case is written in such a way as to allow them to take other, non-listed factors, into account as well. Factors provided under the current statute include the following: The willingness shown by each parent to cooperate in fostering and encouraging a continuing parent-child relationship that would include complying with agreements or court orders pertaining to a parenting plan and time-sharing schedule. The extent to which parenting responsibilities will be divided and the extent to which a parent might delegate them to third parties. The demonstrated capacity of the parent set aside his or her own desires or needs for the sake of those of the child. If a child has been living in a stable environment and desirable environment, a court might consider continuing it as opposed to making a change. Where a child attends school and the amount of time the child will spend traveling between the homes of each of the parents might be a factor that a judge would look at in approving a parenting plan. Each parent's moral fitness. The parents' mental and physical health. Page 6 of 15

7 Information about how the child has been doing in the home, community and school. If a judge believes that a child has the intelligence, experience and understanding to offer a preference, he or she may take that preference into consideration. How informed is each parent about the friends, teachers, health care providers and dayto-day activities of the child. This would include being aware of the child's favorite things. The ability of each parent to offer the child consistency in such things as discipline and schedules for mealtime, sleeping and homework. A parent's willingness and demonstrated ability to keep the other parent informed about issues and activities going on in the child's life. This includes the willingness of each of the parents to put aside their own differences and squabbles to offer a united front in their dealings with the child. Any pending or prior domestic violence, sexual violence, child abandonment, child abuse or child neglect proceedings must be taken into consideration by a judge in a child custody case. Judges specifically acknowledge that evidence of such proceedings was taken into consideration in reaching a decision about the best interests of the child. Evidence that a parent knowingly gave false information in a domestic violence, sexual violence, child abandonment, child abuse or child neglect proceeding. Evidence of the extent to which each parent participated in child-raising and decisionmaking prior to and during custody litigation. Courts will also take into consideration the extent to which a third party was relied upon for parenting responsibilities. Evidence of the extent to which each parent has participated in the school and extracurricular activities of the child. Whether each parent has provided or is capable of providing a substance abuse-free environment for the child. Whether or not a parent has protected and shielded the child from the issues in the custody proceedings. Making disparaging comments about the other party or discussing the proceedings in an effort to influence the child would be looked upon with disfavor by a judge. Florida Statute does not limit judges solely to the factors listed within it when evaluating what is in the best interests of a child. There is one provision in the law that gives judges broad discretion to consider any additional factors that might relevant on the issue. Page 7 of 15

8 For all intents and purposes, this catch-all section of the law gives the court a free rein to take pretty much anything into consideration if it has any bearing on the child or the child's relationship with his or her parents. The only thing that might be off limits for a court to take into consideration could be the non-traditional lifestyle of a parent unless it affects the child's physical or mental well-being. Consequences of Refusing to Honor a Parent's Time Sharing Rights In a state where public policy favors maintaining the relationship between a parent and a child, a parent who refuses to honor the terms of a time-sharing plan risks having financial and other sanctions imposed by a court. Some of the options available to a judge under Florida law include: Awarding additional time-sharing to the innocent parent as compensation for the amount of time-sharing that was denied. The additional time is scheduled for the convenience of the non-offending parent and in a manner that is in keeping with the best interests of the child. Directing the offending parent to pay the court costs and attorney's fees of the innocent parent. Ordering an offending parent to attend a court-approved parenting course. Ordering the parent who did not comply with the time-sharing schedule to do community service as long as it will not adversely affect the welfare of the child. If the parents live more than 60 miles from each other, ordering the offending parent to pay the expenses of the other parent incurred in promoting frequent and ongoing contact with the child. Modifying the time-sharing schedule at the request of the non-offending parent provided doing so is in the best interests of the child. Ordering such other sanctions as the court finds to be a reasonable response to the noncompliance. Courts also retain the authority, in addition to the other sanctions it may impose, to punish a parent for contempt of court for violating a time-sharing order. A Word of Caution about Child Support It might be tempting to retaliate against a parent for failing to pay child support or spousal support by limiting or terminating time-sharing for the nonpaying parent. The proper response is to take the nonpaying parent to court to enforce the support order. Page 8 of 15

9 Violating a time-sharing schedule as retaliation for nonpayment of support could end with the court siding with the nonpaying parent. Only a court can take action against a person who refuses to comply with a support order. A family law attorney might be your best source for legal advice and guidance when dealing with a former spouse or partner who does not comply with the orders of a Florida court. Florida Relocation Laws and Child Custody We may live in a mobile society, but the ability to move about is restricted when parents of a child are no longer living together. As with almost all other issues pertaining to the custody of a child, Florida has rules and procedures that must be complied with before a parent with a child. When Do Courts Become Involved Florida's relocation statute applies if a parent seeks to move a child's principal residence address move than 50 miles from his or her current residence for 60 or more consecutive days. Vacations and other temporary relocations, such as for school or health care reasons, do not require the approval of a court. Relocation When Parents Agree Probably the easiest way to accomplish a long-range move is by a written agreement signed by both parents and by anyone else having visitation rights with the child, such as grandparents. The agreement must contain all of the following: A statement consenting to the proposed relocation The schedule of time-sharing or visitation agreed upon by all parties to the agreement A description of the transportation arrangements for the visitation Relocation might require adjustments to the time-sharing or visitation to accommodate the distance that the child or the person visiting the child will travel. One method of doing this might be extended weekend visits, particularly for young children who are not of school age, or it might include extended visits during school-year vacation periods and during the summer months. Before the move can take place, the written agreement must be approved by a court. Although a hearing is usually not necessary, any party to the agreement may request a hearing provided the request is made in writing within 10 days of the filing of the agreement with the court. Page 9 of 15

10 Relocation When Parents Do Not Agree It is a common occurrence for a parent to object to changes to a child's residence that will affect visitation or time-sharing. When this happens, and the parties are unable to resolve the dispute through negotiations and an agreement, the parent seeking to relocate must serve a written Notice of Intent to Relocate on the other parent and others having visitation rights. The Notice of Intent to Relocate must follow a specific format and must be served on the nonrelocating parties according to specific rules contained in Florida Statute Among other required information, the notice must contain the following: A statement detailing the reasons for the relocation of the child. In cases in which the reason is an offer of a new job, the person requesting relocation should include a copy of any written evidence of the offer. A detailed proposal for visitation and time-sharing to take effect in the event the relocation is approved by the court. The failure of a parent to offer a plan that is satisfactory to the court will probably result in the relocation request being denied. A statement informing the non-relocating person that written objections to the request for relocation must be filed with the court within 30 days after the Notice of Intent to Relocate is served. Anyone served with the statutory notice who fails to object to the relocation within the 30-day time period risks having the court approve the move without having the right to be heard. A judge will usually approve an unopposed request to relocate a child unless the court finds that doing so is not in the best interests of the child. Not offering written objections and relying on a judge to rule that moving is not in the child's best interests is a dangerous position to take. The statute creates a presumption that an unopposed relocation is in the best interests of a child. Relocating without an Agreement or Court Approval Changing the principal residence of a child without seeking court approval under Florida Statute is a contempt of court. It may also result in a court ordering the parent to return the child. Judges may also take the failure to comply with the statute into consideration if an application is ultimately made for approval. Parents violating the statute may also be ordered to pay the other party's court costs and legal fees. If a parent learns that their child is about to be relocated, an application may be made to a court asking it to issue a restraining order to prevent it from taking place. Judges also have the power to grant a temporary relocation order if they find that Notice of Intent to Relocate was properly served on the non-relocating party, and the evidence presented at a preliminary hearing appears to support approval of the relocation request. Page 10 of 15

11 Factors Courts Consider When Deciding a Relocation Request The issue when a child moves more than 50 miles away is the effect it will have on the relationship with the non-moving parent and others, such as grandparents, with visitation rights. Because of this, courts look at many factors when evaluating the request, including: The relationship of the child with his or her siblings, parents and other relatives who play a significant role in the child's life. The effect the move will have on the mental, physical and emotional development of the child. The feasibility of maintaining the relationship the child has with the non-relocating parent. Depending upon the age and maturity of the child, his or her preference regarding the proposed move. Whether the move will enhance the quality of life of the parent and the child. This might take into consideration financial or educational advantages. The reasons given in support of and in opposition to the move. Economic advantages of the move to the parent seeking to relocate with the child. The requested relocation is proposed in good faith. The extent to which the parent objecting to the move is current in his or her financial obligations, such as child support, spousal support and marital debt obligations. The existence of a history of substance abuse or domestic violence. Such other factors as the court might consider of importance in determining the best interests of the child. Burden of Proof The parent seeking to relocate with the child must present evidence in support of the request in cases in which objections have been filed by another party. The burden of presenting evidence in Page 11 of 15

12 opposition falls on the party filing objections only after the party seeking relocation has met his or her burden of proof. The standard used by the court is referred to as a preponderance of the evidence. What this means is that the court will rule in favor of whoever proves a 51 percent probability that their position is the correct one. It might help to visualize a scale that tips ever so slightly in favor of the party in whose favor the judge rules. Grandparents Visitation Rights in Florida Most of the discussion in this book has been about the rights of children and their parents, but at least some mention must be made of the effect divorce or the breakup of a relationship can have on grandparents. Many states recognize the rights of grandparents to petition for visitation and, in some cases, custody of their grandchildren. Compared to other states, Florida is not as grandparent-friendly when it comes to custody or visitation. Parental Rights versus the Rights of Grandparents Florida takes the position that parents should have the right to decide who they want to allow to visit with their children. Florida Statute Chapter 752 allows grandparents and great grandparents the right to petition the court for visitation only if one of the following circumstances exist: The marriage between the child's parents has ended in a divorce or in some other form of judicial dissolution The child has been deserted by a parent The child was born out of wedlock and the parents did not get married Note that in each of the three circumstances under which grandparents are given the right to petition the court for visitation, the parents are usually not making decisions as a couple. This is an important point because it is consistent with the state's reluctance to go against the stated wishes of parents on an issue such as visitation. The stated public policy in Florida is that issues of visitation between grandparents and their grandchildren should be settled within the family (Florida Statute ). If a dispute cannot be resolved within the family, grandparents may file a petition with the court, but the case is not immediately assigned to a judge. Instead, the family must participate in mediation of the dispute, if such services are available, before the matter goes to a judge. Page 12 of 15

13 Factors Judges Must Take into Consideration Once again, the best interests of the child become the focus of the court's attention in making a decision on a request for visitation by grandparents. Some factors that Florida Statute offers a judge to assist in making a decision include: Whether the grandparents will encourage the child to maintain a close relationship with the parents The quality and length of the relationship the grandparents have had with the child in the past If a child is mature to offer a preference, the wishes of the child The physical and mental health of the child The grandparents' physical and mental health Any other factors that the court might deem important Adoption and the Rights of Grandparents Grandparents of children placed for adoption generally do not have the right to petition for visitation. There is, however, one exception. If a parent remarries, and the child is adopted by the stepparent, any visitation rights granted to the grandparents under Chapter 752 are not automatically terminated. In cases of stepparent adoption, judges retain the authority to end visitation with grandparents if requested to do so. A hearing must be held, and the grandparents must be given the opportunity to be heard in order to prove that continued visitation is in the best interests of the child. Uniform Child Custody Jurisdiction and Enforcement Act Children and Our Mobile Society Determining if Florida has jurisdiction, or the authority, to hear a custody dispute is a simple matter when the child and both parents live within the state. Things can get murkier when one of the parents takes the child to another state. Does Florida retain jurisdiction, or should the matter be resolved by a court in the state in which the child now resides. Page 13 of 15

14 The Uniform Child Custody Jurisdiction and Enforcement Act that Florida adopted as the law in the state is designed to offer guidance to judges and litigants when confronted with custody disputes that cross state lines. A total of forty-nine states have adopted the UCCJEA, and approval is pending in Massachusetts. The Child's Home State When a custody dispute involves more than one state, the UCCJEA provides that the home state of the child is the one having jurisdiction to hear the case. The home state is defined as the state in which the child resided with a parent for at least six months before the commencement of the custody case. In cases in which there is already a custody order in place, the Act creates a rebuttable presumption that the court that granted the original order retains jurisdiction over the case. Because it is a rebuttable presumption, however, evidence may be presented to convince a judge that courts in another state should decide the matter. The overriding purpose of allowing a state with significant contacts with the child to hear the case has to do with the availability of evidence and witnesses. A judge may refuse to hear a case, even if he or she has jurisdiction, if doing so would inconvenience witnesses who would have to travel from another state in which the child and a parent have recently moved. Impact of the UCCJEA The Act prevents "forum shopping" by a parent who might not be happy with the way a judge in a state decided a question of child custody. Before the UCCJEA, the parent could take the child to another state and file for a modification without risk of the case going back to the original judge. The UCCJEA prevents forum shopping. Except in cases in the parent can prove a significant connection with the new state, the court granting the original order would retain jurisdiction over its modification. How a Florida Family Law Attorney Can Help Although this book offers a lot of information about child custody in Florida, it cannot touch upon every issue that parents, grandparents or other interested family members might run into when a custody dispute arises. Each case presents unique issues that require the focused attention of an experienced attorney. People frequently forget that judges make decisions based upon the evidence that is presented to them by each side in a dispute. A custody hearing is no exception. Evidence in the form of Page 14 of 15

15 witnesses, school records, health care records and more are required for a judge to evaluate the merits of a petition. A skilled and experienced family law attorney, such as Gerard Virga of the Virga Law Firm P.A. of Panama City, Florida, will know how to identify and present evidence that is most favorable to his client's position. Equally as important is his understanding of the legal and emotional issues that come into play when parents fight over custody of their children. His knowledge of the laws pertaining to parental responsibility and time-sharing schedules allows him to apply complex legal principles to achieve beneficial results for his clients. Contact the Virga Law Firm P.A. to learn more about how they can assist you with your custody case. Page 15 of 15