Articles Posted in Child Custody

Written by: Lenorae Atter, Attorney at Law

Florida custody battles are not always between two parents. Florida family law allows for a third party relative to petition the court for custody in certain circumstances where it is in the best interest of the child. There is a presumption that a parent should have the children, but there are circumstances that can lead to the court determining that the parent, at the time, does not have the ability to care for the children and find it necessary to change custody to a third party, such as grandparents. However, Florida does not recognize grandparents to have permanent rights to the child, unless the parent’s rights are terminated, but it can be on a temporary custody basis depending on the facts.

In a recent Florida appeals case, Slover v. Meyer, 2D10-6074 (Fla. 2nd DCA February 24, 2012), the court established the standard by which to determine the modification from custody to a third party to the parent. In this case, the Mother and Father had a child and the mother eventually died. The maternal grandmother and father actually entered into a parenting plan in Colorado and the grandmother was awarded custody of the child. Due to his history of drug abuse, the father was awarded supervised visitation for one year followed by unsupervised visitation. A step-up in visitation is common when supervised visitation is ordered because it awards the parent for participating in supervised visitation and helps to establish a better bond between the parent and child. In this case, the visitation went well and the father was in drug remission for a number of years while the child lived with the grandmother in Florida.

Florida same sex marriage, adoption, parental rights, and custody questions have been plaguing the courts for a number of years. As a Jacksonville family law attorney, I have been curious about how such things will play out in the legal realm and whether the Florida lawmakers will finally give us something to use as guidelines. Finally, after the Florida Supreme Court did not hear the last adoption case, another same sex question is sitting on the courthouse steps according to a Florida Times Union article . Can a same sex couple have equal rights to a child?

The latest case to be ripe for the Florida Supreme Court on same sex couple issues is presently awaiting the word as to whether it will be on the Court’s calendar in the near future. Many Florida same sex couples have been patiently waiting for the Florida Supreme Court to tackle a number of issues, including parental rights of a same sex couple. The one ripe for a decision is a case involving two women who were in a relationship until 2006. In 2004, the couple had a child after they decided that one woman would provide her egg for in vitro fertilization and the other would carry the child to term. Thus, creating a proposed shared parental responsibility for the child born to them.

The couple subsequently separated in 2006 and the birth mother moved to Australia with the child without the knowledge and consent of the biological mother. After years of searching, the birth mother and child were located and the biological mother sued for parental right and custody of the child.

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In Jacksonville, Florida and other portions of North Florida, the courts are not typically keen on a 50/50 visitation schedule in a divorce or paternity matter. Visitation and custody battles in Florida have taken a legal overhaul in the last few years by the legislature so as to help parents not fight from the very beginning. The changes have impacted how we refer to these issues of visitation and custody by referring to these topics as time-sharing and parenting plans. In a Florida divorce or paternity case, the goal is for the court, the parties, and their respective attorneys, to reach a conclusion that is in the best interest of the children. However, many parents have interpreted time-sharing language to mean that they start and end with equal visitation with the kids. However, the impact the schedule may have on the children is not necessarily in their best interest because parents have different ways of parenting, doing homework, establishing chores, and the like. So, the courts have tried to look at many factors in determining time-sharing plans, including the above listed things, the proximity of the parent to the kids’ schools, the communication between the parents, the relationship of the parents with the kids, etc.

In Florida, determining a time-sharing plan that works for the parents and the children can be a challenge. Often, parents feel that they want 50/50 time-sharing for multiple reasons, sadly, including the fact that it will reduce their child support obligation. Parents have to understand that whether the children are living in your house 50% of the time or spending 90 overnights (i.e. standard guideline time-sharing in North Florida) you are still paying for them, just the payments are different. Child support is determined by a state regulated child support calculations that factors in things like the income of both parties, which parent is paying for health insurance and daycare for the kids, etc. By looking at the incomes of the parties, the calculation actually determines what the household income for the child would be had the parents lived together. Then, based on the overall household income, the money is based on each parent’s contribution thereto. For example, if the household income would be $100,000 and each parent makes $50,000, then each parent’s pro rata share is 50% of the household income. Then, credits are given for the party making health insurance and daycare payments.

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Florida divorce and paternity cases often have a child component, which many refer to as a custody battle. Custody obviously refers to which parent will have the children after the divorce or paternity action is over and ultimately determines which parent will be responsible for paying child support. The term, “custody battle,” initiates any child action with a sense of war between two parents. In 2008, the Florida legislature changed child custody to “primary time-sharing parent,” in an effort to alleviate the idea of going to war over children and ultimately, simply phrasing the legal action so that parents understand that they are, in fact, sharing the children’s time. While the law changed in 2008, most Floridians, at least in Jacksonville where I practice divorce and family law, do not know the new term. The reason is two-fold, one reason is that like anything new, it takes time to get used to and a four year time-frame really isn’t that long after a generation grew up with the movie Kramer vs. Kramer, all revolving around a custody battle.

The change in the law is one that is designed to help parents focus on the overall outcome, the sharing of their child and not focus on who has the child more. However, even with name changes, the overall picture is still the same. When involved in a custody or time-sharing dispute in Florida, the law has not really changed as far as determining the correct parent to have majority time-sharing. The court is responsible for looking at a number of factors, including which parent is more likely to facilitate an ongoing healthy relationship with the child and the other parent, the stability of the parent, the parent’s ability to take care of the child, etc. When two parents fight over the custody or time-sharing issue, the court can actually order the parents to participate in a Custody Evaluation or Social Investigation. The social investigator actually meets with the parents and the children individually and sometimes in a parent/child session to see how the parent and child interact with one another. In addition, the social investigator may conduct a home study where she/he goes to the home of each parent to see the environment the children would live in.

Once the investigator has interviewed the parents and children, she/he may find it necessary to speak with other family members, school officials, friends, etc. to get a better understanding of the family dynamics. If there are issues of mental health or physical health issues of either parent, then the investigator may require medical records be provided so that a full evaluation can be completed. The social investigator takes all components of the investigation to reach a conclusion as to what is in the best interest of the children. While the social investigator’s opinions are helpful to a court, the court is not bound by investigator’s overall conclusion and the court must still look at all factors before determining which parent is most likely going to provide the safest, healthiest, most stable environment for the children.