Custody Battles: How Judges Decide What’s in the “Best Interest” of the Child

By: Jarbath Peña Law Group

Child custody disputes are among the most emotionally charged and difficult aspects of family law. When parents cannot agree on a timesharing schedule, they must turn to the court to make a decision. In Florida, every ruling a judge makes about child custody is guided by a single, overarching principle: the “best interest of the child.” But what does this legal standard actually mean in practice?

Understanding the factors that judges weigh can demystify the process and help you focus on what truly matters. It’s not about winning or losing against your ex-partner; it’s about demonstrating your ability to provide a stable, loving, and supportive environment for your children. At Jarbath Pena Law Group, we guide parents through these challenging disputes with compassion and expertise. This informational guide explains how Florida courts determine a child's best interest and offers advice for navigating your custody case. These factors are not a checklist and they do not operate in isolation. Florida law requires judges to look at all 20 statutory factors—plus anything else relevant—to determine what arrangement best serves the child.

Custody vs. Timesharing in Florida

Most parents use the word “custody” when talking about where their child will live and how parenting decisions will be made. However, in Florida family law, the term custody is no longer used in court. Florida replaced it with two more precise concepts:

• Parental Responsibility – This refers to decision-making authority. Most parents share parental responsibility, meaning they must make major decisions together. Sole parental responsibility is rare and usually only ordered when necessary to protect a child.

• Timesharing – This is the actual schedule of when the child is with each parent—what people traditionally think of as “physical custody.”

Florida made this change to reduce conflict, eliminate the idea that one parent “wins” custody, and to encourage both parents to stay engaged in their child’s life when it is safe and appropriate. Not to mention, the term “custody” implies possession — and no parent owns their child. Instead, Florida law emphasizes the child’s relationship with each parent and the time each parent spends with them.

Because most non-lawyers still use the term custody, and because families commonly search for information using that term, this blog will use “custody” and “timesharing” interchangeably. When we say custody, we are referring to the everyday understanding of the concept. When we say timesharing, we are using Florida’s legal terminology.

The "Best Interest of the Child" Standard in Florida

Florida Statute 61.13 provides a comprehensive list of factors that judges must consider when creating or modifying a parenting plan and timesharing schedule. The court evaluates these factors to gain a holistic view of the family's situation. No single factor is more important than another; rather, the judge weighs them all to reach a decision that best promotes the child's welfare and stability.

Let's break down some of the most critical factors a judge will analyze.

1. The Capacity to Foster a Relationship with the Other Parent

Courts strongly favor arrangements where both parents are actively involved in the child's life. A judge will look for evidence that you are willing and able to encourage a close and continuing relationship between your child and the other parent. Actions that undermine this—such as speaking negatively about the other parent, interfering with communication, or obstructing timesharing—are heavily frowned upon and can significantly damage your case.

2. The Ability to Provide a Stable and Consistent Routine

Children thrive on predictability and routine. A judge will assess each parent's capacity to provide a stable environment. This includes providing food, clothing, shelter, and meeting the child’s developmental needs. The court will consider your work schedule, your living situation, and your ability to manage the daily tasks of parenting, like getting the child to school on time and helping with homework.

3. Moral Fitness and Mental and Physical Health

The court will evaluate the overall well-being of each parent. This doesn't mean you must be perfect, but it does mean that any issues with your mental or physical health should not negatively impact your ability to care for your child. Similarly, the court considers "moral fitness," which generally relates to a parent's lifestyle and decisions. For example, a history of criminal activity or substance abuse could be a significant concern. Courts generally focus on how a parent’s past or present conduct affects their parenting abilities, rather than judging their personal morality. For example, a serious crime committed in the distant past may not be relevant, if it was done even before that parent had children, but committing a crime, getting arrested for it, and then leaving the child stranded at school pick-up, has a more direct correlation with moral fitness relating to parenting.

4. The Child’s Preference

Florida law allows the court to consider a child’s preference if the child is mature enough to express an informed, independent opinion. However, in practice — especially in South Florida — judges place very little weight on this factor. Judges and parents decide time-sharing, not the child, and the courts are careful not to place that emotional burden on them.

Because of this, it is often difficult to even present evidence of a child’s preference. Most judges will not permit a child to testify, particularly if the sole purpose is to establish their preference for one parent over the other. Judges are highly sensitive to the pressure this puts on a child and the potential for manipulation or loyalty conflicts.

While a child’s wishes may be noted, they are typically given minimal weight compared to more substantial factors, such as each parent’s stability, involvement, and ability to meet the child’s day-to-day needs..

5. Evidence of Domestic Violence, Child Abuse, or Neglect

The safety of the child is paramount. Under §61.13, evidence of domestic violence must be weighed in determining detriment and the child’s best interests. A parent’s conviction for domestic violence (a first-degree misdemeanor or greater) creates a rebuttable presumption that shared parental responsibility is detrimental. If that presumption is not successfully rebutted, the court may also limit or withhold time-sharing. A “rebuttable presumption” simply means the judge starts off assuming something is true, but a parent can still prove otherwise with the right evidence.

Where there is no conviction, domestic violence is still relevant, but it does not automatically preclude time-sharing. The judge must link the conduct to actual or likely detriment to the child—such as safety risks, exposure, or impaired co-parenting—rather than relying on impermissible character assumptions.

Florida courts must consider any credible evidence of domestic violence, child abuse, abandonment, or neglect when determining time-sharing. However, not all evidence is automatically admissible in court.

While documents like police reports or medical records can help an attorney prepare your case, they are generally inadmissible hearsay unless properly authenticated and introduced through the appropriate witnesses—such as the responding officer or the medical records custodian. Likewise, witness testimony may be persuasive, but credibility can be challenged, particularly if the witness is a friend or family member.

For evidence to carry meaningful weight, it must be both reliable and admissible, which is why working with an experienced family law attorney is essential. Your attorney can identify the necessary evidence, subpoena key witnesses, and ensure that your case is supported by competent, court-ready proof rather than materials the court cannot consider

6. The Division of Parental Responsibilities

A judge will look at how parental tasks were divided during the marriage and which parent was primarily responsible for duties like attending doctor's appointments, participating in school activities, and arranging childcare. While past roles are not binding, they provide insight into each parent's involvement and experience in raising the child.

7. Geographic Viability of the Parenting Plan

The geographic distance between the parents’ homes is a practical but important consideration. The court must ensure that any timesharing schedule is realistic for the child and both parents. This includes evaluating the length and difficulty of travel between homes, the child’s school, daycare, and extracurricular activities. Judges pay particular attention to the needs of school-age children, for whom long daily commutes can be disruptive, exhausting, or academically harmful.

While Florida law does not create a presumption for or against relocation based solely on distance, the court will assess whether the proposed schedule is workable on a day-to-day basis. If the parents live too far apart to allow easy exchange of the child before and after school, or if transportation demands consistently fall on one parent, the court may adjust the schedule to better support the child’s routine and stability. Ultimately, the goal is to ensure that the timesharing arrangement is not only fair, but also genuinely manageable for the child’s physical, academic, and emotional well-being.

Practical Advice for Parents in a Custody Battle

Knowing the legal standard is one thing; applying it to your case is another. Here are some practical steps you can take to present yourself as a parent focused on your child's best interest.

• Focus on the Child, Not the Conflict: Frame every argument and request in terms of what is best for your child. Instead of saying, "I want 50/50 timesharing because it's fair to me," explain why that schedule provides your child with stability and allows them to maintain a strong bond with both parents.

• Document Everything: Keep a journal or calendar to track your involvement in your child's life. Note doctor's appointments you attended, parent-teacher conferences you participated in, and time you spent helping with homework. This documentation provides concrete evidence of your commitment.

• Encourage Communication: Never block the other parent's calls or texts to the child (unless there is a court order prohibiting contact). Show the court you are a co-parent, not a gatekeeper.

• Maintain Composure: Custody battles are stressful, but it is crucial to remain calm and respectful, especially during court appearances and in written communications with your co-parent. Outbursts of anger or petty comments can be interpreted as instability.

• Follow Court Orders: Adhere strictly to any temporary court orders regarding timesharing and communication. Willfully violating an order signals to the judge that you are not willing to follow the rules, which can severely harm your credibility.

How Jarbath Pena Law Group Can Help

Navigating a custody battle is a formidable challenge. The outcome will shape your family's future for years to come. You do not have to face it alone. An experienced family law attorney can help you understand your rights, build a strong case, and advocate effectively for an arrangement that truly serves your child's best interests.

The dedicated team at Jarbath Pena Law Group provides the skilled legal representation and compassionate support you need during this difficult time. We can help you:

• Gather the necessary evidence to support your position on each of the "best interest" factors.

• Present your case in a clear, compelling, and child-focused manner.

• Negotiate with the other parent's attorney to reach a fair settlement outside of court.

• Vigorously represent you at trial if a mutual agreement cannot be reached.

We are committed to helping you protect your relationship with your children and secure a stable, positive future for your family.

If you are facing a child custody dispute, contact Jarbath Pena Law Group for expert legal guidance. Call us today at 305-615-1005 or visit our website at www.jp-lawgroup.com to schedule a consultation.