Custody litigation in Florida was turned on its head by the new Statute dealing with all family law cases now being filed in Florida. There is no longer “custody” or “primary residence”. The Judges will put into effect a “Parenting Plan”, unless the parties agree to one themselves. The Plan will set out which parent is responsible for specific issues, such as day to day decisions and educational issues. The Plan will set out how the parents and children will communicate with each other. This Plan will incorporate the year around schedule for the children and who they will stay with during what times. This “time sharing” is where the concept of custody will be played out. For example, the old reasons that a parent may have thought that they should have ‘primary custody’ are now going to be used to ask for “majority time sharing”. The goal would still be to have the children staying overnight a majority of the nights, but the language must be totally different. For better or for worse, any time either parent has more than %40 of the overnights over the year, there will be a pretty significant impact on the child support calculation.
The judges in some areas of Florida are treating this new law as a reason to grant 50-50 time sharing in many cases, a result that you would not have seen very often before the law change. It is important to know how your particular judge sees this issue before spending a lot of money litigating this issue if you do not have very strong reasons that this equal time split should not happen.
The judges will be looking at many factors if there is a trial, including the schedule and ages of the children, the historical roles and day to day caretaking that both parents have had responsibility for, the desires of older children (very rarely will children be permitted to testify, usually that will be told through an appointed Guardian ad Litem), any special needs of the children, the location / logistics of any proposed time sharing plan, the likelihood of each parent to foster a relationship between the children and the other parent, and always anything that bears on the best interests of the kids.
As always the cost of litigating disagreements over where the children live is expensive, and because there are so many specific factors that the new law says judges have to look at, it may be more expensive now than ever…and there is no “custody” to win!
As was always the case, if a negotiated settlement about where the children will stay during school times, during breaks, and over holidays can be developed between the parties, everyone wins. Those plans that parents develop and agree to must have particular subjects covered, so if you are using a mediation service, make sure they are aware of all that must be included. The more specific the agreement, the more it indicates all subjects have been discussed, which lessens areas of disagreement later. Most parties will continue on parenting together and may never look at the documents again, but it is good to have there in case new partners or other life changes cause relations to deteriorate for a time..it is good to have a fall back that no one can question.
Keeping the childrens needs at the front of everyone’s mind during the divorce can be difficult. Whatever happens with the time sharing schedule, in Florida it is almost assured both parents will have shared parental responsibility, meaning full rights to ongoing access and say in all important aspects of the raising of the children. Both parents making decisions together, and finding ways to deal with disagreements as all parents (divorced or not) must do..that has to be better for our kids.
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