Frederick L. Pollack, Esq.

Attorney and Counselor at Law

Child Custody

Up until 2010, parents involved in a Family Law case routinely got caught up in a battle for "Child Custody."  Since that time, the Florida legislature has changed the statutes such that "Custody" of a child no longer exists and the Family Law court instead makes a determination of "Parental Responsibility". 

The Court may order that the parents have SHARED PARENTAL RESPONSIBILITY or may award one of the parents SOLE PARENTAL RESPONSIBILITY

Pursuant to F.S. 61.046 (17) Shared parental responsibility” means a court-ordered relationship in which both parents retain full parental rights and responsibilities with respect to their child and in which both parents confer with each other so that major decisions affecting the welfare of the child will be determined jointly.

Pursuant to F.S. 61.046 (18) Sole parental responsibility” means a court-ordered relationship in which one parent makes decisions regarding the minor child.

The controlling statute for determination of Parental Responsibility is F.S. 61.13(2)(c), which provides that "The court shall determine all matters relating to parenting and time-sharing of each minor child of the parties in accordance with the best interests of the child and in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act, except that modification of a parenting plan and time-sharing schedule requires a showing of a substantial, material, and unanticipated change of circumstances.

1. 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. There is no presumption for or against the father or mother of the child or for or against any specific time-sharing schedule when creating or modifying the parenting plan of the child.

2. The court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child. Evidence that a parent has been convicted of a misdemeanor of the first degree or higher involving domestic violence, as defined in s. 741.28 and chapter 775, or meets the criteria of s. 39.806(1)(d), creates a rebuttable presumption of detriment to the child. If the presumption is not rebutted after the convicted parent is advised by the court that the presumption exists, shared parental responsibility, including time-sharing with the child, and decisions made regarding the child, may not be granted to the convicted parent. However, the convicted parent is not relieved of any obligation to provide financial support. If the court determines that shared parental responsibility would be detrimental to the child, it may order sole parental responsibility and make such arrangements for time-sharing as specified in the parenting plan as will best protect the child or abused spouse from further harm. Whether or not there is a conviction of any offense of domestic violence or child abuse or the existence of an injunction for protection against domestic violence, the court shall consider evidence of domestic violence or child abuse as evidence of detriment to the child.
a. In ordering shared parental responsibility, the court may consider the expressed desires of the parents and may grant to one party the ultimate responsibility over specific aspects of the child’s welfare or may divide those responsibilities between the parties based on the best interests of the child. Areas of responsibility may include education, health care, and any other responsibilities that the court finds unique to a particular family.
b. The court shall order sole parental responsibility for a minor child to one parent, with or without time-sharing with the other parent if it is in the best interests of the minor child.
 
3. Access to records and information pertaining to a minor child, including, but not limited to, medical, dental, and school records, may not be denied to either parent. Full rights under this subparagraph apply to either parent unless a court order specifically revokes these rights, including any restrictions on these rights as provided in a domestic violence injunction. A parent having rights under this subparagraph has the same rights upon request as to form, substance, and manner of access as are available to the other parent of a child, including, without limitation, the right to in-person communication with medical, dental, and education providers."  {Emphasis added.}
 
 
 
In short, unless there is a really good reason why the Court should not do so, parents will be awarded shared parental responsibility of their child(ren), and neither party should have preference above the other.  The tender years doctrine no longer applies and the Court recognizes that it is important for the child(ren) to have strong relationships with both parents.  Any determination of parental responsibility must be based upon the best interests of the minor child(ren), and the Court can take into account which parents has historically done what for the child(ren) and what is the expected division of those responsibilities after the parties separate.  Often times one of the key considerations to the Court is which parent is more likely to foster and facilitate the relationship between the child(ren) and the other parent, so a parent should be leary of restricting the other parent's access and/or time-sharing to the child(ren) unless it is to safeguard the child(ren) from some substantial risk of harm.
 
 
The full text of Florida Statute 61.13 may be found here
 
While information on this page is hopefully helpful to you in explaining current Florida law, the information on this page should not be considered nor relied upon as legal advice.  If you would like specific legal advice regarding your case or situation, please contact my office at (813) 228-0400 to schedule a consultation to discuss your circumstances and learn how the law may apply to you and your family.
 

 

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