By: Jarbath Pena Law Group
Whenever co-parents do not live together—whether they were never married or are getting divorced—they need to determine where their child will spend their time. Over the decades, custody laws and attitudes have changed. The courts no longer automatically assume that the mother gets sole custody and the father is no longer relegated to every other weekend visitation.
Instead, there is a rebuttable presumption that it’s best for children to spend equal or almost equal amounts of time with both of their parents. So, instead of automatically giving mom sole custody, courts now start with the presumption of equal time sharing. Then, a judge will consider the best interests of the child when deciding where the child will live. In fact, Florida no longer refers to this as child custody, but as parental time sharing.
Today, we will take a close look at the 20 “best interest of the child” factors that Florida courts consider when determining how parents will share time with their children. If you have any other questions, the lawyers of the Jarbath Peña Law Group can help. We are only a phone call away.
Agreements Are Best for Child Custody
First, it’s important to know that Florida courts prefer for co-parents to work together to come up with their own parenting plan. In other words, before you run to court to ask a judge to make these very personal and impactful decisions for you—it’s best for co-parents to attempt to reach an agreement on how to split time with their kids.
We help accomplish this by serving as an advocate and as an intermediary for you, especially if you have a challenging time communicating with your child’s other parent. We can handle negotiations, and even go with you to mediation to protect your interests. But if mediation fails to result in an agreement, you will likely need to have a judge decide. But how do judges make this decision?
20 Factors Courts Use to Determine Custody
When co-parents cannot agree, the court (most likely a judge, but sometimes a general magistrate) will decide how parents will split time with their children. The parties go to court to present evidence pertaining to the following 20 factors—as listed in Florida Statutes § 61.13(3)—that the court will use to decide what is in the child’s best interest. Some may overlap a bit, but we’ll address each one individually.
#1. Parental Disposition
This factor refers to each parent’s ability to promote a close relationship between the child and the co-parent. The court will look at each parent’s history of cooperation, honoring the time-sharing schedule, and reasonable reactions when changes arise.
#2. Parental Responsibilities
After a couple separates, the court will look at who will take on the majority of the parental responsibilities. Who is going to take the child to and from school, bathe, and feed them most often? Will either parent use a nanny or other third party to help? Courts tend to weigh this factor in favor of the parent who takes on the majority of these responsibilities versus delegating them.
#3. Capacity to Act in the Best Interest of the Child
Some parents lose sight of what is important and begin acting in their own best interests, as opposed to keeping their child’s interests at the top of their priority list. When a parent shows that they put their own needs above their child’s needs, a judge will weigh this factor against them.
#4. Stability and Continuity in Child Custody
The judge will look at which parent can provide a stable and healthy environment. If the child has lived and gone to school in the same district for years and one parent moves a substantial distance away—the court may decide that it is best for the child to remain in their stable environment as much as possible. Of course, the court weighs this factor against all the other factors listed here and may have to also look at the relocation factors. The courts also consider if a parent has moved multiple times, as constant changes to the child’s environment are not ideal.
#5. Geographic Considerations
Suppose that the child’s father moved 50 miles away from where the child had been attending school. If the court granted a 50/50 time-sharing split, this would mean the child has to spend a great deal of time commuting to school on the days they are with their day. Therefore, equal time-sharing will not be possible, and the court will likely provide for a long distance parenting plan.
#6. Moral Fitness
This title is a little misleading. The court will not judge a parent’s morals per se, as morals change depending on a person’s culture, religion, and even where they live. The court only looks at morals insofar as they pertain to how each parent treats the child, and whether or not their treatment of the child or other parent is detrimental to the child’s well-being.
For instance, if Mom disparages Dad in front of the child every chance she gets or tries to interfere with the child’s relationship with Dad—then a judge might be less inclined to grant Mom significant time with her child. Since Mom’s actions indicate that she cares more about her own welfare and feelings than causing harm to her child, the court will not ignore such behavior and will consider it when determining who gets a higher percentage of custody time.
#7. Parents’ Mental and Physical Health
Simply having an illness or mental issues will not keep your child from you. But if the child’s well-being is jeopardized by a parent’s mental or physical illness, a judge would consider that when deciding custody. They may even decide that a safety-focused parenting plan is best, with certain parameters in place to ensure the child remains safe.
For example, suppose Tom and Terra have an active two-year-old toddler, Sarah. Tom has a debilitating physical illness that renders him incapable of moving quickly. His movements are painful and labored. If the judge believes that this inability to move quickly would put Sarah at significant risk of injury—then they might grant Terra much more parenting time or ask that someone else be present when Tom has Sarah. The supervisor would be able to keep a closer eye on Sarah or run to her aid if she were hurt, or about to be hurt.
Another example would be if Terra had a serious mental issue. Suppose she has dissociative personality disorder and loses entire chunks of time while her subconscious believes she is an entirely different person. This would clearly put Sarah in danger, and a judge would consider this when awarding custody time.
#8. The Child’s Home, School, and Community Record
The court knows that a child whose parents are involved in their lives is more likely to get better grades and develop better life-long habits. Therefore, a judge usually favors a parent who displays a strong desire and ability to be involved in the child’s education, help them with their homework, get them to their extracurricular activities, and talk with the child about what is happening in their life.
#9. The Child’s Preference in Child Custody
The judge may or may not consider the child’s preference. If the child is a teenager, there is a higher likelihood that they will have the “intelligence, understanding, and experience to express a preference”—as stated in the statutory language. Therefore, the court is more likely to consider the child’s preference if they are at least 13. However, every judge can use their discretion in assessing whether a specific child is mature enough to weigh in on this matter. On the scale of all the factors, this is given less weight than the first factor, which focuses on whether or not one parent will foster a positive relationship between the child and other parent.
This factor has some similarities with number eight but with some different nuances. A judge will look at each parent’s involvement and knowledge of their child’s life. For instance, which parent knows the child’s friends, what they like to play with, and generally knows the events and details of the child’s life? The more involved a parent is, the more likely a judge will be to grant them more time with the child.
#11. Consistent Routine in Child Custody
For this factor, the judge will assess things such as:
Which parent provides a good routine for the child?
Which parent gives the child’s life structure?
Which parent consistently ensures that these routines and structures are adhered to?
Children do better in life if they have a structured, consistent routine in their formative years. Children who are dealing with the emotional turmoil that often accompanies their parents’ divorce need even more consistency in their lives—and the parent that provides it will likely benefit.
#12. Ability to Cooperate with Co-Parent
To effectively co-parent, each person must be willing and able to work with, communicate with, and compromise with the child’s other parent. Both parents must keep the other informed about the child’s school needs, medical needs, and any other essential information. Each parent should strive to work with the other to give the child as seamless a life as possible both during and after the divorce. The parents should also strive to present a united front on child-centered questions or issues.
Let’s look at our example of Tom, Terra, and Sarah again. Suppose during the pendency of the divorce, Tom is angry at Terra. So he refuses to drop Sarah off on time and routinely leaves Terra waiting for her daughter one, two, three, or even four hours past the drop-off time with no notice. Furthermore, suppose that Tom tries to undermine Terra at every turn—disagreeing with Terra’s parenting decisions and letting Sarah know how much he thinks mom is wrong. None of this behavior indicates that Tom is willing or able to work amicably with Terra to co-parent Sarah. When they go to court, the judge will likely look unfavorably at Tom’s behavior and could decide to grant him less parenting time as a result.
#13. Abuse or Neglect
If there is evidence of either parent abusing or neglecting the child in any way—a judge could certainly use this to lessen the offending parent’s time with the child. This includes a history of domestic violence, child abuse, sexual violence, child neglect, or child abandonment. While one isolated incident might not be enough to result in a reduction of time-sharing, depending on the specific facts, a judge might order reduced or supervised visitation.
#14. Providing False Information to the Court
This relates to the previous factor and every litigant’s duty to be honest with the court. If either parent tries to cover up a history of abuse or neglect, the judge is likely to use that against the dishonest parent. So if Tom was abusive and lied to the court to cover it up, the judge would likely count both the abuse and dishonesty against him. Or, if Tom is abusive and Terra tries to protect him from the judge’s ire by lying about or minimizing the abuse, the judge will likely hold this against Terra. Another instance is if a parent is maliciously and continuously files false DCF reports against the other parent. Simply having the report come back with no findings is not enough to demonstrate lack of candor, as a parent could have been genuinely concerned,but mistaken. The courts tend to look at the history and timing of the report, as well as the frequency and the veracity of the allegations made.
Lying to the court is never taken lightly. But when such a lie can endanger a child, courts take that even more seriously as it indicates that the child’s welfare is not the highest priority for the offending parent.
#15. History of Parental Responsibilities
Who had the majority of parenting responsibilities during the parties’ relationship? If one party took care of most of the parenting duties, trying to turn that on its head is usually not in the best interests of either the child or the parents. If one parent works 60 hours per week and leaves the child with a caregiver the majority of the time the child is in their home, it makes sense that the court would award more time-sharing to the other parent.
That being said, suppose the parent with less historical parenting responsibilities shows that they have taken on a much more active role in their child’s life since the separation. If that parent asks the judge to give them a higher amount of time-sharing, the judge will likely take the recent increase in participation into account.
#16. Parental School and Extracurricular Activity Involvement
This factor is similar to numbers 8 and 10. A parent has the responsibility to get their child to school and to extracurricular activities on time and consistently. It is even better if the parent participates in some way.
For instance, if Terra routinely volunteers to serve as a teacher’s aide in Sarah’s class and coaches her soccer team, but Tom doesn’t even make it to the games most of the time—then this factor will weigh in Terra’s favor.
#17. Drug-Free Environment
Documented substance abuse is only a problem if it happens in front of the child, is detrimental to them, or endangers them in any way. So, if Terra routinely gets drunk in front of Sarah and Sarah tells the guardian ad litem about it, the judge might weigh this against Terra’s time with her child.
#18. Parent’s ability to shield the child from ongoing litigation
Parents should not use their child as a sounding board. During the pendency of the divorce, parents should seek to protect their child from the litigation details. They should not share evidence with the child nor disparage the co-parent in front of the child. If either parent exposes the child to litigation issues or bad-mouths the co-parent in the child’s presence, the judge will likely weigh this factor against them.
#19. Ability to Meet Developmental Needs
There are normal and/or special developmental needs that need to be addressed with every child. For instance, if the child has speech or occupational therapy, or has issues with executive functioning, the parent that is involved and always takes a child with autism to therapy, is knowledgeable about the therapy, and has a good relationship with the therapist while the other parent has never shown an interest—this will weighed by the court.
#20. Any Other Relevant Factor
This one allows the judge to include any factor that they decide is worthy of consideration given the facts of the particular case. Yes, it means that the judge can take anything into consideration as long as they can articulate, for the record, why they feel the factor is relevant.
Call Jarbath Peña Law Group Today
A parent’s job is hard, and it can be even harder when your abilities as a parent are put under a microscope. Unfortunately, during a divorce where the couple cannot agree on a time-sharing schedule, a judge needs to look at all these factors before determining what is in the best interests of the child. Be the best parent you can be, with all these factors in mind as your case progresses.
The lawyers at The Jarbath Peña Law Group can help you navigate these tumultuous waters.
Let us help to protect and preserve your time with your kids. Call today at 305-615-1005 or through our online contact form to set up your initial consultation. We look forward to discussing how we can help.