When a man and woman have a minor child (or children) together, two primary issues arise when deciding the allocation of time and decision-making involving the children. First, how will parental responsibility be assigned? Parental responsibility involves who will make major decisions regarding matters such as education, religious upbringing, discipline, and medical care. The presumption in Florida is that parents should have shared parental responsibility. This means the parents should each participate in decision-making in these areas. For a court to award sole parental responsibility, the court will usually require there to be some extraordinary circumstance (such as abuse, neglect, substance abuse, etc.). The second issue involving the minor children is “timesharing.” This concept covers when and where the children will spend time with each parent. Effective October 1, 2008, all divorces must include a parenting plan which covers parental responsibility, timesharing and other related issues such as transition (pick-up and drop-off), vacations, holidays, transfer of belongings, and notice of whereabouts of the children. The parenting plan governs each parent's relationship with his or her minor child and the relationship between each parent with regard to his or her minor child.
For purposes of establishing a parenting plan, including a time-sharing schedule, the best interest of the child shall be the primary consideration. Determination of the best interests of the child shall be made by evaluating all of the factors affecting the welfare and interests of the particular child and the circumstances of that family, including, but not limited to:
(a) The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required.
(b) The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.
(c) The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent.
(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
(e) The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of either parent with a child.
(f) The moral fitness of the parents.
(g) The mental and physical health of the parents.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
(j) The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to, the child's friends, teachers, medical care providers, daily activities, and favorite things.
(k) The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, and daily schedules for homework, meals, and bedtime.
(l) The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child.
(m) Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect, regardless of whether a prior or pending action relating to those issues has been brought. If the court accepts evidence of prior or pending actions regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect, the court must specifically acknowledge in writing that such evidence was considered when evaluating the best interests of the child.
(n) Evidence that either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect.
(o) The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties.
(p) The demonstrated capacity and disposition of each parent to participate and be involved in the child's school and extracurricular activities.
(q) The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse.
(r) The capacity and disposition of each parent to protect the child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child.
(s) The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child's developmental needs.
(t) Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.
These factors are taken into account in both divorce and non-divorce situations. In other words, if parents have a child and were never married, a court can still make parenting and timesharing decisions based on the factors listed above.
Under Florida law, neither parent is to be given preference for parenting or timesharing. This runs counter to prior law where there was a principle known as the “tender years” doctrine. Under the tender years doctrine, when a child was very young, there was a preference for the mother being the primary parent. The tender years doctrine is no longer the law applicable in Florida. Instead, the court is obligated to determine the best interests of the child in light of the considerations set out in paragraphs (a) through (t) above.
In some cases, the court will appoint a third party to conduct a parenting evaluation and to recommend a parenting plan to the court. Such an evaluation is usually conducted by a mental health or counseling professional and is usually done when the parties request such an evaluation. The main negatives of requesting such an evaluation is that it can take significant time (usually at least 90-120 days) and it is expensive (usually a minimum initial retainer of $2,500, with the total cost depending on the case). However, in a hotly contested parenting dispute, having one done is often a necessity.
Perhaps one of the most important factors to understand in any case involving minor children is that the court has a great deal of discretion in fashioning a parenting plan. This can present a risk to parties who do not work out the parenting/timesharing issues on their own. If they don’t, the court will decide the issues and the outcome may not be what either parent expected.
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