It is the public policy of the State of Florida that each child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and that the parents share the rights, responsibilities and the joys of childrearing.
There is no presumption for or against the father or mother of the child or for or against any specific time-sharing schedule when creating or modifying the parenting plan for the child. Section 61.13(2)(c)1, Florida Statutes (2015). When the court is tasked with establishing a parenting plan, the courts favor shared parental responsibility (decision-making authority) as the default arrangement unless the court finds that shared parental responsibility would be detrimental to the child. Section 61.13(2)(c)2, Florida Statutes (2015). An award of shared parental responsibility means that the parents must confer with each other when making major decisions that affect their child’s health, safety and welfare.
When the parents are unable to agree on the terms of the timesharing schedule and other provisions of the parenting plan, the Court will then establish a parenting plan with the timesharing schedule for the parents based on the best interest of the child standard. The Court makes its determination as to what type of a parenting plan and timesharing schedule would be in the child’s best interests by evaluating all of the factors affecting the welfare and interests of the child and the circumstances of the child’s family, including, but not limited to, the following statutory factors:
(a) The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required.
(b) The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.
(c) The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent.
(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
(e) The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of either parent with a child.
(f) The moral fitness of the parents.
(g) The mental and physical health of the parents.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
(j) The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to, the child’s friends, teachers, medical care providers, daily activities, and favorite things.
(k) The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, and daily schedules for homework, meals, and bedtime.
(l) The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child.
(m) Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect, regardless of whether a prior or pending action relating to those issues has been brought. If the court accepts evidence of prior or pending actions regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect, the court must specifically acknowledge in writing that such evidence was considered when evaluating the best interests of the child.
(n) Evidence that either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect.
(o) The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties.
(p) The demonstrated capacity and disposition of each parent to participate and be involved in the child’s school and extracurricular activities.
(q) The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse.
(r) The capacity and disposition of each parent to protect the child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child.
(s) The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs.
(t) Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.
Section 61.13(3), Florida Statutes (2015).
When there is a timesharing dispute between the parents, they often assume that their child’s preference would somehow control and that the child would just be able to talk to the Judge about where the child wants to live. However, that is not the case. A child’s preference is just one of the many factors the Court considers for the purposes of establishing a parenting plan. Also, for a child to speak with the Judge about his or her preference, the Judge must first authorize such “in camera” testimony. When a parent wants a child to testify or speak with the Judge, a motion must first be filed alleging that it would be in the child’s best interests to express to the Judge his or her preference. It is only if the Court grants the motion and allows the child to testify “in camera” may a child be brought to the Courthouse to speak with the Judge.
When ruling on such a motion, the Court considers the age of the child, whether the child is intellectually and emotionally mature to have a valid opinion on the issues of parenting plan/time sharing, the degree of emotional trauma that will result to the child as a consequence of the child being brought to Court to talk about his or her parents, and any other fact that the Court deems relevant. It is also important to keep in mind that if the motion is granted, the child’s “in camera” testimony would usually occur outside the presence of the parents and their attorneys.
When such a motion for in-camera testimony is filed, it rarely proceeds without an objection from the other parent. When the other parent believes that the child at issue cannot be trusted to be truthful or objective because of the other parent’s manipulation of the child and that any testimony elicited from the child would likely be coached and biased, that parent will object to the motion.
There is also no magic age when the child may testify. When the Court does allow the child to testify, the weight that the Court gives to such testimony greatly depends on the child’s age; the older the child, the more weight will be given to that child’s testimony. In other words, Judges are likely to give greater weight to the wishes of teenage children than of a younger child.
Ultimately, it is after the Court hears all the evidence on the parenting matters, will the Court determine what parenting plan/timesharing arrangement will be in the child’s best interests. Once that determination is made, the parenting plan with the timesharing schedule becomes a Court order that must be strictly adhered to by both parents.
When that original parenting plan with timesharing schedule no longer serves the best interests of the child, the parenting plan may be modified under certain circumstances.
In order to modify a parenting plan, a parent must show that there has been a substantial, material, and unanticipated change in circumstances since the entry of the original parenting plan and that the proposed modification is in the best interests of the child. Sections 61.13(2)(c) and 61.13(3), Florida Statutes (2015). See Wade v. Hirschman, 903 So. 2d 928, 933 (Fla. 2005) (the party who is pursuing the modification (the moving party) has the burden of showing that (1) there has been a substantial and material change in circumstances since the entry of the original parenting plan and (2) the child’s best interests would be served by the proposed modification). Section 61.13(2)(c) of the Florida Statutes grants the courts the continuing jurisdiction “to modify … custody order[s] but does not state the conditions necessary for modification. [T]herefore, … [it is] case law [that provides] guidance on how to make this determination.” Id. Consequently, the determination of what constitutes a substantial and material change is generally based on the unique facts of each case.
Subsequently, it is always best when the parents are able to resolve their differences and reach an agreement on the terms of their parenting plan, including the timesharing schedule, rather than have the Court determine what is in their child’s best interests, as that ultimate Court determination may not end up being what the parents “thought” it should be. That is the case because it is the parents who know their child best. Therefore, even when it seems that a compromise is out of reach, parents should always strive to reach an agreement on the parenting plan and the timesharing schedule rather than leave it to the Court to make that ultimate “best interest” determination for them based on the statutory factors and the applicable case law.