How Do I Get Sole or Full Custody of a Child in Florida?

In the heat of a contentious divorce, many parents want full or sole custody of their children. They may truly feel their spouse is not a good parent, or they may consciously or unconsciously be using the children to hurt their spouse or get some sort of revenge. The state of Florida, however, will rarely allow one parent to be completely cut out of his or her children’s lives. The goal of the court is to ensure the best interests of the children are being looked after, and this almost never means depriving them of one parent. Sharing time and parental responsibility are separate but linked issues in most cases.

Florida courts will try to let the parents share responsibility for the children when possible, with supervised visits, daytime visits, overnight visits, or, in rare cases, no visitation at all for one parent until certain conditions are met. In fact, the term “sole custody” has not been used in Florida family law for many years, and has been replaced with “sole parental responsibility”. There are times, of course, when the other parent is truly unstable, unreliable, an alcoholic or addicted to drugs, or is simply a dangerous person for the children to be around. If this can be documented, then sole parental responsibility could be an option.

Sole Parental Responsibility vs. Shared Parental Responsibility

Shared Parental Responsibility

Most Florida courts will work toward shared parental responsibility unless they feel it is in some way detrimental to the child. Both parents being involved in the child’s life is the goal, with both parents discussing and deciding major decisions which affect their child. In particular, decisions which have long-term consequences for the child such as the childcare facility or school they will attend, the doctors they will see, the medical treatments they will receive, their religious affiliation, and any decisions about long-term trips and vacations are made by both parents when they share parental responsibility. Shared parental responsibility for older children could include decisions about driving, school, extracurricular activities, college and part-time employment. All parents who share parental responsibility will have a parenting plan which will include, at a minimum:

• How parents will communicate with one another and with the child;
• Which parent will be responsible for health care and school-related matters;
• Which parent’s address will be used for school boundary determinations and registration;
• Time-sharing schedule arrangements which specify times the child will spend with each parent, and
• How the parents will be responsible for daily tasks associated with raising children, such as homework, after-school activities, meals, etc.

When supervised time-sharing for one parent, or relocating the child with one parent is involved, special forms and additional requirements will be added to the parenting plan. Shared parental responsibility means that the parents will talk to one another when there are major decisions to be made for the child. A major decision is considered any decision that would affect the health, safety or welfare of the child. Shared parental responsibility has virtually nothing to do with where the child primarily lives or the amount of time the child spends with each parent, rather it means that both parents retain full parental rights and responsibilities.

Sole Parental Responsibility

A parent who has sole parental responsibility means he or she has total decision-making authority for the child, and can make major life decisions for the child without having to consult the other parent. Remember, sole parental responsibility is the exception in Florida, rather than the rule, and is generally ordered only when one parent has been shown to be unfit.

For a court to order sole parental responsibility, it must find that shared parental responsibility would be detrimental to the child in some way. There are also statutory reasons a Florida court might order sole parental responsibility, including evidence that a parent has been convicted of a third-degree or higher felony crime involving domestic violence. It is important to note that even when a person has no parental responsibility for his or her child, that parent is still required to pay financially support for the child.

Rotating Custody

A type of custody which has been fairly “trendy” over the past few years is known as rotating physical custody or 50/50 custody. While parents who get along well with one another may be able to make such a plan work, courts generally don’t favor rotating custody. Unless the parents live on the same block, it can be very difficult for children to spend three days with one parent, three days with the other, and so on, simply from a logistical standpoint. Backpacks, homework, clothing and sports attire for older children are often left at one parent’s home and needed at the other. For smaller children, the “binky” they can’t sleep without, the diaper bag or a favorite toy seems to always be at the other parent’s home.

Rotating custody can work, but for most families it completely disrupts any kind of routine for the child, and for the parents as well. Especially when the rules are very different between mom’s house and dad’s house, this type of custody arrangement can be very confusing for children. With shared parental responsibility, both parents make major decisions, however the child generally lives at one parent’s home, and has time-sharing with the other, usually on weekends and alternating holidays, plus extra time in the summer. This keeps the child in one home for the school week, making it much simpler to spend the weekend with their other parent.

Other Issues Related to Sole or Shared Parental Responsibility

What if Parents Cannot Agree on a Parenting Plan?

It is in the parents’ best interests to work hard with one another to develop a workable parenting plan, because if they cannot, a judge will make these decisions for them. If the court must come up with a parenting plan it will take the following factors under consideration:

• The likelihood that each parent will facilitate and encourage a close relationship between the child and the other parent;
• The likelihood that each parent will honor the time-sharing schedule;
• The likelihood that each parent will be reasonable when changes are necessary;
• How parental responsibilities will be divided after the divorce;
• The extent parental responsibilities will be delegated to third parties;
• The ability of each parent to act in the best interests of the child;
• The time the child has lived in a stable environment;
• The desirability that the child should remain in this stable environment;
• Geographic viability of the parenting plan;
• How healthy—mentally and physically—each parent is;
• How morally fit each parent is;
• The child’s home, school and community record;
• If the child has sufficient understanding of the situation to express a preference, and that preference is reasonable, the court will take it into consideration;
• How much each parent knows about the child’s friends, medical care providers, favorite things, daily activities and teachers;
• The likelihood of each parent to provide a consistent routine for the child;
• The likelihood of each parent to provide consistent discipline, daily homework schedules, bedtime routines and meals;
• Whether the court believes the parents can communicate with one another on issues concerning the child;
• Whether there has been prior evidence of child abuse, child neglect, sexual violence, domestic violence or child abandonment from either parent;
• The ability of each parent to provide a substance-free home for the child;
• The ability of each parent—as well as their past history—to participate and be involved in the child’s school and other activities;
• The parenting tasks typically performed by each parent prior to the divorce;
• The parenting tasks typically performed by each parent during the divorce;
• Whether either parent has falsely accused the other of child neglect, sexual violence, domestic violence or child abandonment;
• The developmental stage of the child;
• The needs of the child;
• How each parent will meet those developmental stages and needs;
• The ability of each parent to avoid discussing the ongoing litigation with the child, and
• The ability of each parent to avoid making disparaging remarks to the child about the other parent.

As you can see, the court will consider many different aspects of the child’s current life as well as how his or her future life will look with one parent or the other having primary parental responsibility. Sometimes the courts get it right, and other times they don’t. It is difficult to make these determinations about two parents when the judge doesn’t know them, other than in a contentious legal situation. For this reason, it is almost always preferable for parents to work diligently with one another to prepare a parenting plan which will work for all those involved. If you can barely stand to be in the same room with your ex, this is going to be a difficult process. Mediation can help, and is definitely worth looking into. With mediation, you might both get at least some of what you want in the parenting plan. When a judge prepares a parenting plan, neither of you may get what you want.

Parental Time-Sharing

Part of what will be contained in a parenting plan is how the parents will “share” time with their child. While parental time-sharing was once known as visitation, that word has been replaced with time-sharing—after all, you are not “visiting” your child, you are parenting the child, helping shape him or her into the person they will become. The visitation schedule will be based on the age of the child, whether the child attends school, and the distance the parents live from one another.

For example, if both parents live in relatively close proximity, then Friday night through Sunday afternoon might be a workable time-sharing agreement for the non-custodial parent. If, however, the child is older, and involved in many extracurricular activities, he or she might have sports events on Friday and/or Saturday nights which could interfere with the time-sharing agreement. Further, if the parents live a considerable distance from one another, the time-sharing logistics become even more difficult to arrange.

In cases where one parent decides to move out of state, the logistics become even more tangled. If the primary residential parent wants to move out of state, he or she will be required to present a compelling case to the court, which could include a specific opportunity for the child or a job opportunity for the parent. When considering whether the primary residential parent should be allowed to move out of state, the court will consider the age and developmental stage of the child as well as other factors.

How Important is Sole Parental Responsibility To You?

Before you march into your attorney’s office at Ayo and Iken and demand that he or she obtain sole parental responsibility on your behalf, it is important to take a moment and answer some questions. First, clarify with your attorney what you really want, prioritizing those desires. Understand that you will probably not be allowed to eliminate the other parent from your child’s life, barring extraordinary circumstances. Determine how hard you want to fight for the right to sole parental responsibility, and whether you have the funds to see that fight through to the finish.

Look for alternatives to sole parental responsibility which you both could possibly live with, and, if you intend to deny shared parental responsibility to your child’s other parent based on something like drug or alcohol use, make sure you have current documented information which is tangible, relevant and convincing. Your Florida family law attorney has likely seen many, many situations which are at least similar to your own. Listen to the advice your Ayo and Iken attorney offers, and unless you are truly fearful for your child when he or she is with the other parent, try to remember that children need both parents and look for a workable solution.