Florida Adopts New Custodial Terms and Concepts

In October 2008, the law in Florida concerning custody in divorce and paternity actions dramatically changed. The terms custody and visitation were removed from the law. The terms custody, primary residential parent, secondary residential parent, and visitation have been replaced with parental responsibility, time-sharing and parenting plans.

Why the change?  The court system was overwhelmed with parents fighting over the title primary residential parent versus secondary residential parent. Many believed if they were the primary residential parent that they had superior rights to the child; and the secondary residential parent was a second class parent. Also, the secondary residential parent resented that he or she had to visit their child rather than live with or spend time with their child. To avoid fighting over semantics, the Florida legislature adopted the concept of time-sharing and parenting plans to replace the old system of awarding custody to one parent or the other.

What is parental responsibility?  Unlike past practice, neither party will be awarded custody; instead, the court will award parental responsibility for the child, either shared or sole parental responsibility. Shared parental responsibility is where both parents have full parental rights and responsibilities with respect to their child. The parents must communicate with each other and make joint decisions concerning their child’s welfare, including health, education, religion, etc. Under unusual circumstances, a court may order sole parental responsibility to one parent where the court finds that shared parental responsibility would be harmful to the child. In certain circumstances, the court may award ultimate responsibility over specific aspects of the child’s welfare, such as education and/or health or may divide responsibilities between the parents.

What is time-sharing?  A schedule in the parenting plan that sets forth the specific times, including overnights, weekends, and holidays that the child will spend with each parent. 

What is a parenting plan?  An agreement or court order that is created to establish the roles of each parent when it comes to making decisions regarding the child’s welfare, including education and health care. The parenting plan must also have a time sharing schedule for each parent and the child.

How does the court determine time sharing and parental responsibility? The court is guided by the “best interest of the child.” There is no presumption in favor of equal time sharing or what was known as rotating custody. In determining the child’s best interest with respect to parental responsibility and time-sharing, the court looks at approximately twenty factors. Some of these factors are:

• Ability of each parent to facilitate and encourage a close and continuing parent-child relationship, including honoring the time-sharing schedule;

• The extent to which parental responsibilities will be delegated to third parties;

• Capacity to act upon the needs of the child, as opposed to the needs or desires of the parent;

• Moral fitness of each parent;

• Mental and physical health of the parents;

• The home, school, and community record of the child

• The ability of each parent to participate and be involved in the child’s school and extracurricular activities;

• Developmental stages and needs of the child;

• The ability of each parent to maintain an environment for the child free of substance abuse;

• The reasonable preference of the child, if the court finds the child to be of sufficient intelligence, understanding, and experience to express a preference;

• The parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pendency of the action;

• The capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the child.