Written by: Lenorae Atter, Attorney at Law
Issues involving children typically arise in Florida divorce and paternity actions. As a Jacksonville family and divorce lawyer, I often meet with clients that want to have sole custody of the child. However, sole custody is not what they imagine it to be. The confusion in the terminology typically leads itself down an unwanted path. The questions that need to be answered are whether both parents are fit to have shared parental responsibilities in making decisions regarding the child(ren) and what type of time-sharing or visitation they would most like to have with the child. Understanding the terms can be helpful when going through a divorce or paternity case because you better know what to fight for during the case.
Sole custody is actually no longer a term used in Florida family law cases. The implications of, “sole custody,” are that one parent wants the other parent to have absolutely nothing to do with the child. Typically, this is not the case. However, if you ask the court for, “sole custody,” then the judge is typically going to ask what it is about the other parent that makes him or her unfit as a parent. For example, if Mary and Frank are divorcing and Mary has a significant drug and alcohol addiction, then Frank may tell an attorney he wants sole custody. What Frank really means is that he wants to be the majority time-sharing parent, in accordance with Florida statutes. Also, Frank is saying that Mary is not capable of making decisions regarding the child’s welfare, including decisions related to education, medical attention and the like. Therefore, Frank actually wants to be the majority time-sharing parent and have sole parental responsibility for the child.
Parental responsibility is the actual duty that a parent has in raising a child. A child is not capable of deciding whether public or private school is necessary or whether he or she should get braces. The parents generally make such decisions and when divorcing or having a paternity case, the court tries to have the responsibility for the child shared by the parents regardless of where the child lives the majority of the time. This allows for both parents to actually parent the child, unless there are extreme circumstances limiting a parent’s ability to do so, as in Frank and Mary’s case.
Custody is now an archaic term in Florida divorce and paternity cases. The Florida legislature determined that the language leads to aggressive behavior by parents, which is not in the best interest of the child(ren). As such, custody was replaced with terminology such as, “majority time-sharing” and, “primary time-sharing parent.” The intent of the change is to still allow for visitation to be determined for the parties and the child(ren), but in a way that focuses on the task at hand, actually dividing time between parents. The shift has actually been helpful in that parents seem to think more in terms of the time they would practically have with the child(ren). However, there are ideas that time-sharing means that the schedule should be a 50/50 split and courts have been adamant that it was not the intent of the legislature for a presumption of 50/50 time-sharing. As such, it still has to be determined in a case what is most practical for the parents and what is best for the child.
If you are going through a divorce or paternity case in Florida, then you should speak with an experienced family law attorney to better understanding your rights and options.