If you're a parent facing divorce, or you were never married to your child's other parent, you'll have to deal with the question of which parent the child will primarily live with, how much time the other parent will have with the child, and who has the right to make important decisions about the child's upbringing. Even if you were divorced years ago, you might need to change your current parenting arrangements. Read on to learn how Florida law deals with these issues.
There are two types (or aspects) of child custody in Florida: parental responsibility and time-sharing (usually called legal and physical custody in other states).
"Parental responsibility" refers to each parent's right to make major decisions concerning a child's upbringing, including important decisions about health care, education, and religion. Under Florida law, judges must order that both parents will share parental responsibility, unless a judge specifically finds that it would be detrimental to the child's well-being.
However, just because parents share parental responsibility (known as joint physical custody in other states), that doesn't necessarily mean that both of them must consent to every important decision. The judge may grant one parent the ultimate responsibility over certain aspects of the child's welfare or divide decision-making responsibilities between the parents, based on the child's best interests. For example, the judge might grant one parent the ultimate decision-making authority over medical care and where the child will attend school, while giving the other parent the right to decide about the child's religious upbringing. (Fla. Stat. § 61.13(2)(c) (2023).)
If the judge orders shared parental responsibility over health care decisions, Florida law requires that the parenting plan allows either parent to consent to mental health treatment for the child. (Fla. Stat. § 61.13(2)(b) (2023).)
Even if parents have shared parental responsibility, when the child is staying with a parent under the time-sharing schedule, that parent will make day-to-day decisions—like scheduling routine doctor's visits—as well as emergency decisions that affect the child's health and safety.
Rather than using traditional terms like "physical custody" and "visitation," Florida custody law refers to "time-sharing" and "parenting plans" when setting out the rules for allocating the amount of time each parent will have with the child or children. The parents may have roughly equal time sharing, or the child may live mostly with one parent (called the primary custodial parent in most states) while spending a certain amount of time with the other parent. In any particular case, the time-sharing schedule will depend on the parents' agreement or a judge's decision as to what's best for the child.
Florida parents may always agree on how they'll handle parental responsibility and parenting time after they separate or divorce. They'll need to submit their written and signed agreement, in the form of a proposed parenting plan, to the court for approval.
In order for a plan to be approved by the court, it must include at least the following:
(Fla. Stat. § 61.13(2)(b) (2023).)
Typical parenting plans also include other details, such as:
If parents can't agree to parenting plan on their own, they have two options to get help reaching an agreement:
As in all states, a child's best interests are central to any child custody decision in Florida. If the parents aren't able to agree on a parenting plan, a judge will have to hold a hearing and decide what would be best for the child. When making that decision, Florida law requires judges to evaluate the family's particular circumstances and all of the factors that affect the child's welfare, including:
(Fla. Stat. § 61.13(3) (2023).)
When it comes to evaluating parents' moral fitness, Florida courts have held that judges should focus on whether the parents' behavior has directly affected the child's welfare. (Maradie v. Maradie, 680 So.2d 538 (Fla. Ct. App. 1996).)
Florida, like almost all other states, has a set of laws governing when the state's courts have jurisdiction (legal authority) to issue orders affecting child custody. Under these laws, known as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), Florida courts generally have jurisdiction to issue custody orders for children who have lived in the state with a parent (or someone acting as a parent) for at least six months just before the beginning of the divorce or other custody case. (Fla. Stat. §§ 61.503, 61.514 (2023).)
The rules in UCCJEA are complicated, and there are many exceptions to the basic rules. In general, once courts in Florida (or any other state that has enacted the UCCJEA) have issued custody orders, they continue to have exclusive jurisdiction over that child's custody, unless certain circumstances have changed—such as when both parents and the child no longer live in the state. That means that a Florida judge may not modify a custody order from another state unless the strict requirements for changing jurisdiction have been met. (Fla. Stat. §§ 61.515, 61.516 (2023).)
Although it's not part of the UCCJEA, Florida has another law that specifically allows judges to approve, grant, or modify a parenting plan if it appears that someone took the child out of the state in an attempt to prevent Florida courts from having jurisdiction to take any of those actions. (Fla. Stat. § 61.13(2)(a) (2023).)
The UCCJEA includes a provision for what's known as "temporary emergency jurisdiction." Typically, this allows a state's courts to issue orders concerning custody of a child who's in the state at the moment and has been abandoned or needs emergency protection from actual or threatened abuse or mistreatment—even if the child doesn't live in that state with a parent. If there are existing custody orders in the child's home state, judges in both states are supposed to confer with each other on how best to protect the child and how long the emergency orders will remain in effect.
In May 2023, Florida added a new condition to this emergency authority: when the child "has been subjected to or is threatened with being subjected to sex-reassignment prescriptions or procedures." Here's how this might work in practice: Say a transgender child lives with their parents in another state (where existing custody orders were issued), and one parent has consented to having the child take puberty blockers as part of gender-affirming medical care. Conceivably, the other parent could take the child on a trip to Florida and request custody orders under that state's temporary emergency jurisdiction. (Fla. Stat. § 61.517 (2023).)
Children's needs change, particularly as they get older and have more activities connected with their school and friends. When the parents live fairly far apart, it can become more disruptive for the kids to be constantly shuttling back and forth. Also, parents' work schedules might change, making it hard for them to stick with the current time-sharing schedule.
But it's never a good idea simply to change your arrangements without getting formal court approval. As with initial child custody orders, you and the other parent may agree on changes to your parenting plan. But you must follow the procedures for filing a "Supplemental Petition" to request a modification before a judge will approve your new agreed parenting plan.
If both parents don't agree on a revised parenting plan, a judge will have to decide on your modification request. Under Florida law, a judge will not modify any order regarding parental responsibility, a parenting plan, or a time-sharing schedule unless the parent who's making the request proves both of the following:
When deciding whether you've met that second requirement, the judge will consider the same best-interest factors (listed above) that go into an initial custody determination. (Fla. Stat. § 61.13(3) (2023).)
One of the most common changes that can affect custody comes up when parents want to move. But Florida has specific rules for requesting court approval for a planned relocation with a child. Any parent who doesn't follow those requirements before moving with a child could be subject to contempt charges or other enforcement proceedings (more on that below). (Fla. Stat. § 61.13001 (2023).)
If either parent refuses to follow the time-sharing schedule in the approved or court-ordered parenting plan, and that parent doesn't have a good reason for the refusal, Florida judges have a number of enforcement options, including the following:
Also, a parent who files a petition for enforcement of custody orders may also apply for a warrant to take physical custody of the child, if that child is likely to be seriously harmed or removed from the state. The law defines "serious physical harm" as including being "subjected to sex-reassignment prescriptions or procedures." (Fla. Stat. §§ 61.13(4)(c); 61.534 (2023).)
You—and your children—will always be better off if you can resolve any custody disagreements with the other parent without a court battle, either on your own or with the help of a mediator or parenting coordinator.
Once you settle on an agreed parenting plan or changes to an existing plan, you may be able to get court approval for your plan without hiring a lawyer. The Florida courts have online forms, with instructions, that you can use for the parenting plan (Form 12.995(a)) and for a petition to modify parental responsibility or a parenting plan and time-sharing schedule (Form 12.905(a).) The court's website also has a "Family Law Section" with more information on establishing, enforcing and modifying custody orders in Florida.
Also, if you file for divorce online, a reputable service should provide the completed form for a parenting plan, based on your answers to a questionnaire.
However, if you simply aren't able to reach an agreement on a parenting plan, you should know that disputed custody proceedings can be difficult to navigate (and win) without the assistance of an experienced, local family law attorney.