Can Children Express Preference in Florida Custody Proceedings?

Learn how a child's preference impacts custody decisions in Florida.

By , Attorney · Brigham Young University J. Reuben Clark Law School
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When parents divorce or separate, the parents must reach an agreement or a judge will decide where the couple's children will live. Older children may prefer to live with one parent over the other. Depending on the child's maturity, a judge can consider a child's wishes when determining parenting time arrangements.

This article explains how a child's preference impacts custody decisions in Florida. If you have additional questions after reading this article, you should consult a local family law attorney for advice.

Overview of Custody Decisions in Florida

When separating parents can't agree how to split parenting responsibilities and visitation time, the judge will make the decision for them. After hearing evidence from both parents at a custody trial, the court will develop a parenting plan, including a time-sharing schedule, based on what is in the child's best interests. As part of the parenting plan, a judge will decide parenting time and parental responsibility.

Parenting Time

"Parenting time" or "time sharing" refers to the amount of time each parent spends with the child. In some states this is called "physical custody". A judge will determine a time sharing child custody schedule in Florida. Parents can have roughly equal time sharing—sometimes called "joint custody."

In cases where the parents live far apart, equal time sharing may not be practical and a judge may award one parent far more time with the child – called "sole custody" or "majority time sharing."

A parent can lose time sharing rights if there's evidence of domestic violence, child abuse or neglect. See Fla. Stat. § 61.125 (2020). Even where parents share equal parenting time, a judge will designate one parent as the "custodial parent." The other parent is the "noncustodial parent."

Parental Responsibility

"Parental responsibility" involves a parent's authority to make decisions on the child's behalf. A parent with legal custody can make major decisions involving the child's welfare, education, or health.

Judges often prefer to grant both parents legal custody over a child so that parents can have an equal say in a child's upbringing. In cases where parents can agree, the custodial parent will have the final say on decisions involving the child.

A Child's Best Interests in Florida

Time sharing and parental responsibility decisions are based on a child's best interests. The goal of any custody proceeding is to determine the parenting time arrangement most suited to the child's needs.

The judge will consider a number of factors when making a custody decision, including the following:

  • each parent's willingness to foster a relationship between the child and the other parent
  • each parent's ability to meet the child's needs
  • each parent's physical and mental health
  • each parent's moral fitness
  • each parent's ability to provide the child with a consistent routine
  • geographic viability of the parenting plan, specifically the amount of travel it would take to honor the time-sharing schedule
  • the child's home, school and community ties
  • the child's preference if of a sufficient age, intelligence, and understanding
  • evidence of domestic violence, if any
  • each parent's ability to provide a safe and stable environment for the child
  • the child's developmental age, needs, and abilities, and
  • any other relevant factor. See Stat. § 61.13(3) (2020).

Unlike some other states, Florida custody laws require a judge to evaluate a parent's moral fitness in a custody case. A parent's "moral fitness" refers to circumstances that might affect a child's moral and ethical development such as a parent's substance abuse problems, frequent casual relationships with multiple partners, or illegal behavior.

A judge will consider a parent's extramarital relationship in a custody decision only if the behavior had a significant negative impact upon the child.

Child's Opinion in a Florida Custody Decision

In Florida, the age a child can choose a parent to live with will depend on the child's overall maturity. Unlike other states, in Florida, there is no particular age when courts must consider a child's preference.Instead, a judge will decide whether:

  • the child is intelligent enough to make a choice
  • the child understands the decision he or she is making, and
  • the child has enough experience with each parent so that the decision is meaningful.

While Florida law doesn't state an exact age when a child's preference must be considered, in one case, the judge stated that a 10-year old is normally too young to make an intelligent decision.

However, in another case, the court considered 11-year old's preference to be very intelligent and articulate. In Florida, the age a child can choose a parent to live with will depend on your case's unique circumstances.

Even though a judge may consider a child's stated preference, the court doesn't have to base a custody decision solely on the child's opinion; the judge simply needs to consider it along with all the other factors that are relevant to custody.

The court also must determine whether the child is making an intelligent decision or if the child is just rebelling against the current custodial parent. The judge will also investigate whether a parent is unfairly influencing the child to express an opinion; Florida judges are sensitive to whether a parent is coaching a child to choose him or her over the other.

The judge will make an independent decision for each child. For example, a judge can't assign custody of a child too young to have an intelligent opinion to the father simply because the older siblings want to live with their father.

One Florida case involved a son and a daughter, where the son preferred living with his father, and evidence showed that the mother ignored the son's activities and often left him alone during the week. Still, the court couldn't transfer the daughter's custody to the father when the daughter and mother had a close relationship, and the girl preferred living with her mother.

When Can Children Speak for Themselves in Court?

In Florida, neither the parents nor their attorneys can force a child to testify as a witness in court. Courts are careful to protect minor children from getting involved in family law litigation even though a child's opinion in a custody decision is relevant.

A court will only allow a child to testify if his or her testimony is absolutely necessary, or if it is an emergency. However, there are ways a judge may consider a child's testimony out of court.

A judge can appoint a licensed mental health professional or another expert to interview the child, and that professional or expert can later testify to the court about the child's desires.

Sometimes the child may also speak with a guardian ad litem (a person the court appoints to represent the best interests of a child) or a custody evaluator who can testify in court.

Alternatively, the judge may speak directly with a child in his or her chambers, outside the presence of the parents. When this is done, a court reporter must be present to record the child's statements, otherwise, the judge can't base his or her custody decision on the child's testimony.

If you have additional questions about children's custodial preferences in custody proceedings, contact a Florida family law attorney for help.

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