CUSTODY (TIMESHARING)

When I first started practicing family law, approximately 20 years ago, Florida would assign the following designations between the parents in a family law action: custodial parent and non-custodial parent. This title would cause a lot of issues between the parties, because neither parent wanted to be considered the non-custodial parent (or, in their mind, “lose” custody). This was problematic because the litigation continued to ensue due to the fact that neither party wanted the “stigma” associated with the title of being a non-custodial parent, despite the fact that they would still continue to enjoy a great deal of visitation with the child(ren).

In an effort to limit this issue and the resulting “stigma”, the legislature, at one point, changed the designations as follows: primary residential custody (who had the majority of the overnights) for one parent and secondary residential custody for the other parent. However, this too caused the same exact issue. Neither parent wanted to be considered the “secondary” residential parent because they too considered that to be in essence “losing” custody.

Finally, in 2008, the legislature changed the designations completely eliminating the word “custody” from the title and any references to that word throughout the rest of the statutes and instead simply called it “time-sharing”. This huge change, along with requiring the parties to enter into a detailed and comprehensive parenting plan, timesharing schedule, which I will discuss in more detail, was created in an effort to limit the litigation immensely. This change of the designation to “timesharing” would appear to completely resolve the issue, but now either party still wants the majority of timesharing, regardless of a specific designation, or one of the parties insists on a 50/50 (equal) timesharing schedule.

Even though in many cases currently, 50/50 (equal timesharing) seems like the norm, there are still many factors that the court will or is supposed to consider in reaching a decision when arriving at a specific timesharing schedule. For more information and to see various factors that the court should be considered in each case regarding the issue of timesharing, you may visit the statute on point, Florida Statute §61.13

PARENTING PLAN / TIMESHARING SCHEDULE

As discussed previously, the court will require the parties to either arrive at their own mutually agreed upon parenting plan, or in the event that the parties cannot arrive at their own agreement (did not settle that particular issue on their own), the court will arrive at its own decision after considering what are the best interests of the child(ren) based on the other factors set forth in Florida Statute §61.13.

Before the 2008 overhaul of the statute, there was no specific requirement for the parties to have a detailed parenting plan and timesharing schedule. Once the legislature required this, there were far less arguments concerning disputes in the schedules because having a very detailed and comprehensive parenting plan/timesharing schedule avoided many future post-judgment (after a divorce case is resolved) disputes between the parties.

After the divorce is finalized, the parties are still free to work with each other in an effort to make temporary changes to the schedule without affecting the rest of the schedule permanently. At any time, however, if there are some disagreements, the parties can always revert back to the court-ordered schedule, which is great to have as a fallback. It is always great for the parents to have some flexibility when temporary changes are required.

RELOCATION

Sometimes a parent wants to have the ability to permanently relocate (a distance of over 50 miles) with the minor child(ren) to a distant town or state, which often creates huge controversy. These cases are very difficult for the court to make a decision because there is no middle ground – it is all or nothing! A parent cannot just pick up and leave with the children permanently. That parent has to follow a specific protocol before they are able to permanently leave town with the children. The statute on point is Florida Statute §61.13001.

There are several factors that the Court will look at when allowing a parent to relocate with the minor children, which are set forth in this statute.

CHILDREN’S WISHES / SOCIAL INVESTIGATOR

One of the statutory factors for a court to look at when arriving at a time-sharing determination is the preference of the child(ren) assuming that the child or children is/are of the mature age, intelligence, and understanding, which is typically 10-12 year of age. However, the Court dislikes having children being brought to the court to testify. As a least restrictive method, the court can appoint a social investigator to investigate and make a recommendation in order to assist the court in making this determination.

There are two huge advantages of having a social investigator appointed in a case.

The Costs

First, the cost is usually far less in most cases to have this investigator do much of the legwork in providing enough information to make this decision for the judge easier. This would bring down the costs of the litigation significantly and provide a lot more certainty on what to expect at the time of trial.

Hearsay Exception

Next, normally a parent cannot tell the court what the child alleged-ly told him/her because introducing an out-of-court statement is hearsay and it is not admissible. Even though there are a few limited exceptions to the hearsay rule, generally the court cannot consider statements from the children or any other witness if they are not in court testifying. There is an exception for social investigators, who can testify in the capacity of an expert and are thus permitted to also tell the court what the child’s wishes/preference is/are without putting the children in a difficult situation by having them testify in court against their parents.

PARENTAL RESPONSIBILITY

Parental responsibility is different from timesharing and should not be confused with it. Parental responsibility is a court-ordered arrangement that sets forth decision-making between parents. There are 3 kinds: 1) shared parental responsibility; 2) sole parental responsibility; and 3) ultimate parental responsibility.

Shared parental responsibility– Shared parental responsibility is ordered in most cases. Regardless of the actual timesharing schedule and how many overnights a parent has or even if that parent does not even live in Florida, both parents typically have a duty to confer with each other on making major decisions regarding their children. This does not mean that the parents have to agree on all day-to-day decisions. This mainly deals with major decisions that affect the best interests of the minor child(ren).

These major decisions typically include health-related decisions (medical) and school (academic). The court will no longer make a determination regarding religion.

Most parents are able to put their differences and disputes between each other aside and are able to consider what is best for their children, especially when it comes to major decisions affecting their upbringings such as medical decisions and academic decisions. This is why shared parental responsibility works for the most part.

Sole Parental Responsibility– In order to avoid having the case reopened every time there is a dispute and experiencing delays and legal fees and costs with those hearings, one parent could be awarded sole parental responsibility, which would allow one parent to make 100% of the decisions without ever even needing to discuss those decisions or issues with the other parent in the first place. This sounds great but is extremely difficult to be awarded in most cases. Typically, one parent would have to prove that the other parent had a history of making such bad decisions in the past and/or is incapable of making a rational decision in the future. Basically, there needs to be a showing that shared parental responsibility would be detrimental to the best interests of the minor child. This is often a very difficult burden.

Ultimate Parental Responsibility– There is a hybrid, which has been pretty effective, which is called ultimate parental responsibility. This still requires the parties to adhere to conferring on major decisions with each other and trying to come up with a mutual agreement without court intervention (much like it is under shared parental responsibility). However, in the event of a dispute, rather than bringing that particular matter back to the court for a determination, one parent has the last word and can make the final decision over the other parent’s objection.

This is often great for one parent but could be problematic for the object-ing parent. This basically allows one parent to go through the charade of pretending to discuss an issue and trying to have a meeting of the minds, but basically gives that one parent the ability to overrule/veto the other parent’s desire.

When crafting our settlement agreements, in order to try to keep both parties working on a level playing field, depending on the nature of the case, of course, we try to have the parents exercise shared parental responsibility, but we add additional language that provides in the event of a conflict, if the parents have to litigate the matter by reopening the case, the prevailing party shall be entitled to reimbursement of his/her attorney’s fees and costs.

This often will provide some caution to the parties before allowing the matter to be submitted to the court as, if they do not prevail, they may be responsible for the other side’s reasonable attorneys fees and costs, which can be exorbitant. This actually forces the parties to really reconsider their positions and really attempt to work with each other in an effort to resolve their matters amicably and thus keeping them from litigating the matter in the first place.