How does a court decide which parent will get custody of a child?

In the 2008 legislative session, Florida made sweeping changes in its law regarding how, what was commonly referred to in the public as "custody" or "primary residence" is determined. The term "custody" is not a proper term under Florida law even though it has been used for years by the public, lawyers and judges to describe the parent with whom a child primarily lives. Because of the extensive impact of the new legislative changes, requiring a revision to not only many statutes, but numerous Supreme Court forms, as well as the likely creation of new ones, this law does not go into effect until October 1, 2008.

In its most simplistic explanation, this new law eliminates the terms "custody", "custodial" and "non-custodial parent", "primary residence", "primary residential parent" and "visitation" from Chapter 61 and all other statutes which utilize these arcane and often litigation inducing terms, in exchange for shared parenting plans and time-sharing arrangements.

However, the law goes further by expanding the considerations of shared parental responsibility and in the establishment of parenting plans, which include time-sharing schedules, which are now mandatory. The text of the new law can be downloaded at http://laws.flrules.org/files/Ch_2008-061.pdf.

"Shared Parental Responsibility" versus "Sole Parental Responsibility"

In Florida, the Court has two initial options when deciding "parental responsibility" issues. The Court can award the parties "Shared Parental Responsibility" or it can award one of the parties "Sole Parental Responsibility". What is the difference between "Shared Parental Responsibility" and "Sole Parental Responsibility" you might ask? Under the new statute, "Sole Parental Responsibility" means a court-ordered relationship in which one parent makes decisions regarding the minor child. "Shared parental responsibility" means a court-ordered relationship in which both parents retain full parental rights and responsibilities with respect to their child and in which both parents confer with each other so that major decisions affecting the welfare of the child will be determined jointly.

Parenting Plans must Now be Developed instead of the Court Determining Primary Residence

Generally speaking, the courts favor Shared Parental Responsibility. The terms "Primary Physical Residence" or "Primary Residential Responsibility" were in the past considered by many to be the "buzzwords" for what is generally referred to as "custody" in many other states. Those terms have now been deleted from the 2008 version of the statute in favor of the Court now developing a "Parenting Plan" for the child(ren). A "parenting plan" 1 has certain minimum requirements (see footnote) 2 .

What is Shared Parenting?

Shared parenting requires parents to confer with each other when making major decisions that affect the health, safety and welfare of the child. It does not mean 50/50 custody as the term

itself might imply. In fact, it has nothing whatsoever to do with where a child lives or the amount of time the child spends with one parent or the other 3 . Shared parenting only means that both parents have to confer with each other when making major decisions affecting the welfare of their children and that both parents retain full parental rights and responsibilities. In short, just because parents are breaking up or divorcing each other, it does not mean that they are divorcing their children.

Sole Parental Responsibility is the Exception in Florida Law-On What Basis Can the Court Award Sole Parental Responsibility?

Sole Parental Responsibility is very much the exception in Florida and is generally only ordered in cases where one parent is "unfit" to share in the parenting of the child. It is necessary, before sole responsibility is given to one parent, that the court determine that shared responsibility would be detrimental to the child 4 . The statutory law 5 and the case law on the subject states that the

Court must find that shared parental responsibility would be detrimental to the best interests of the child . If the court determines that shared parental responsibility would be detrimental to the child 6 , it may order sole parental responsibility 7 . There are also statutory reasons for a Court to Order Sole Parental Responsibility 8 .

Rotating Custody- Another Option for The Court to Examine

Another option for parents who generally "get along" with each other is "rotating physical custody" (50/50). This type of situation has, in the past, generally not been favored by the courts and the statutes 9 . However, rotating custody is becoming more in "vogue" at the current time 10 .

The Factors that the Court Must Consider in Developing a Parenting Plan

When the parents cannot agree on a parenting plan, the court will make the decision for them after considering the totality of the circumstances, with the overriding consideration being the child's best interests. To make that determination, the court considers the following factors:

  1. 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
  2. The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.
  3. 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.
  4. The length of time the child has lived in a stable, satisfactory environment.and the desirability of maintaining continuity.
  5. 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.
  6. The moral fitness of the parents.
  7. The mental and physical health of the parents.
  8. The home, school, and community record of the child.
  9. The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
  10. 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.
  11. 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.
  12. 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.
  13. 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
  14. 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.
  15. 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.
  16. The demonstrated capacity and disposition of each parent to participate and be involved in the child's school and extracurricular activities.
  17. The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse
  18. 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.
  19. The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child's developmental needs.
  20. Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.

In many cases, a consideration of these factors results in awarding custody to the parent who has been the child's primary caretaker during the marriage/relationship 11 . Although this is often the child's mother, any preference for the mother strictly on a gender basis is outmoded and has been abrogated by statute and case law on the subject 12 . In many cases, fathers have been proven to be the better parent and have been awarded primary residence.


1 Under the statute, a "parenting plan" is defined as follows: "Parenting plan" means a document created to govern the relationship between the parties relating to the decisions that must be made regarding the minor child and shall contain a time-sharing schedule for the parents and child. The issues concerning the minor child may include, but are not limited to, the child's education, health care, and physical, social, and emotional well-being. In creating the plan, all circumstances between the parties, including the parties' historic relationship, domestic violence, and other factors must be taken into consideration. The parenting plan shall be developed and agreed to by the parents and approved by a court or, if the parents cannot agree, established by the court.

2 As per the statute:
(b) Any parenting plan approved by the court must, at minimum, describe in adequate detail how the parents will share and be responsible for the daily tasks associated with the upbringing of the child, the time-sharing schedule arrangements that specify the time that the minor child will spend with each parent, a designation of who will be responsible for any and all forms of health care, school-related matters, other activities, and the methods and technologies that the parents will use to communicate with the child.


3 See Longo v. Longo, 576 So.2d 402 (Fla. 2nd DCA 1991) in which the Court stated that:
"As stated in section 61.13(2)(b)1, "[i]t is the public policy of this state to assure that each minor child has frequent and continuing contact with both parents after the ... marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities of childrearing." A natural parent should not be precluded from asserting valid parental rights, irrespective of a default judgment entered against him. See Rhines; Doane v. Doane, 279 So.2d 46 (Fla. 4th DCA 1973)."


4 Hunter v. Hunter, 540 So. 2d 235 (Fla. Dist. Ct. App. 3d Dist. 1989); Hicks v. Hicks, 511 So. 2d 628 (Fla. Dist. Ct. App. 2d Dist. 1987); Holland v. Holland, 458 So. 2d 81 (Fla. Dist. Ct. App. 5th Dist. 1984); Nichols v. Nichols, 432 So. 2d 648 (Fla. Dist. Ct. App. 1st Dist. 1983);
Sole parental responsibility of the parties' child could not be awarded to the former wife absent a specified finding on the record or in the final judgment that shared parental responsibility would be detrimental to the child. Griffin v. Griffin, 665 So. 2d 352 (Fla. Dist. Ct. App. 1st Dist. 1995).


5 Fla. Stat. 61.13(2)(b)2 provides as follows:
2. The court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child. Evidence that a parent has been convicted of a felony of the third degree or higher involving domestic violence, as defined in s. 741.28 and chapter 775, or meets the criteria of s. 39.806(1)(d), creates a rebuttable presumption of detriment to the child. If the presumption is not rebutted, shared parental responsibility, including visitation, residence of the child, and decisions made regarding the child, may not be granted to the convicted parent. However, the convicted parent is not relieved of any obligation to provide financial support. If the court determines that shared parental responsibility would be detrimental to the child, it may order sole parental responsibility and make such arrangements for visitation as will best protect the child or abused spouse from further harm. Whether or not there is a conviction of any offense of domestic violence or child abuse or the existence of an injunction for protection against domestic violence, or child abuse or the existence of an injunction for protection against domestic violence, the court shall consider evidence of domestic violence or child abuse as evidence of detriment to the child.

a. In ordering shared parental responsibility, the court may consider the expressed desires of the parents and may grant to one party the ultimate responsibility over specific aspects of the child's welfare or may divide those responsibilities between the parties based on the best interests of the child. Areas of responsibility may include primary residence, education, medical and dental care, and any other responsibilities that the court finds unique to a particular family.

b. The court shall order "sole parental responsibility, with or without visitation rights, to the other parent when it is in the best interests of" the minor child.


6 Trial court could not award wife sole parental responsibility for minor children without first making finding that shared parental responsibility would be detrimental to children. West's F.S.A. 61.13(2)(b) 2. Schram v. Schram, 932 So. 2d 245 (Fla. Dist. Ct. App. 4th Dist. 2005).
Trial court was required to make a specific finding that shared parental responsibility would have been detrimental to the parties' child before awarding mother sole parental responsibility. West's F.S.A. 61.13(2)(b) 2. Evans v. Woodard, 898 So. 2d 230 (Fla. Dist. Ct. App. 2d Dist. 2005).
The trial court abused its discretion when it awarded sole parental responsibility to wife, in divorce proceeding, where there was no finding that shared parental responsibility would be detrimental to the children. West's F.S.A. 61.13(2)(b)2. Coyne v. Coyne, 895 So. 2d 469 (Fla. Dist. Ct. App. 2d Dist. 2005). Trial courts are required to make a specific finding of detriment to the child before awarding sole parental responsibility. West's F.S.A. 61.13(2)(b)2. Maslow v. Edwards, 886 So. 2d 1027 (Fla. Dist. Ct. App. 5th Dist. 2004).
Trial court's failure to make a specific finding that shared parental responsibility would be detrimental to child before awarding sole parental responsibility to mother necessitated remand of paternity action. West's F.S.A. 61.13(2)(b)2. Maslow v. Edwards, 886 So. 2d 1027 (Fla. Dist. Ct. App. 5th Dist. 2004).


7 Fla. Stat. 61.13(2)(b)2.
Sole parental responsibility means a court-ordered relationship in which one parent makes decisions regarding the minor child. Fla. Stat. 61.046(15).


8 Fla. Stat. 61.13, effective October 1, 2008 now reads as follows:
Evidence that a parent has been convicted of a felony of the third degree or higher involving domestic violence, as defined in s. 741.28 and chapter 775, or meets the criteria of s. 39.806(1)(d), creates a rebuttable presumption of detriment to the child. If the presumption is not rebutted, shared parental responsibility, including time-sharing with the child, and decisions made regarding the child, may not be granted to the convicted parent. However, the convicted parent is not relieved of any obligation to provide financial support. If the court determines that shared parental responsibility would be detrimental to the child, it may order sole parental responsibility and make such arrangements for time-sharing as specified in the parenting plan as will best protect the child or abused spouse from further harm. Whether or not there is a conviction of any offense of domestic violence or child abuse or the existence of an injunction for protection against domestic violence, the court shall consider evidence of domestic violence or child abuse as evidence of detriment to the child.


9 See Fla. Stat. 61.121 which was not changed in the 2008 legislation that reads as follows:
61.121. Rotating custody
The court may order rotating custody if the court finds that rotating custody will be in the best interest of the child.
See also the case of Mancuso In Mancuso v. Mancuso, 789 So.2d 1249, (Fla. 4th DCA, 2001) the Court stated as follows:
"On the contrary, section 61.121, Florida Statutes (1997), requires that the trial court make a finding that rotating custody is in the best interest of the child. In light of the long-standing presumption that rotating the primary residence is not in the best interest of the child, the trial court should carefully examine a marital settlement agreement providing for such an arrangement and exercise its discretion in determining whether it is in the child's best interest. See Bracken v. Bracken, 704 So.2d 746, 747 (Fla. 4th DCA 1998). See also Mandell v. Mandell, 741 So.2d 617, 618 (Fla. 2d DCA 1999)(holding that section 61.121 did not set aside the long held presumption that rotating custody is not in the best interest of a minor child). [2] Florida courts have identified several factors that a trial court should consider in determining whether the circumstances overcome the presumption against rotating the primary residence: (1) the age and maturity of the child; (2) whether the child is in school; (3) the proximity of the parents' residences; (4) the child's preferences; (5) the disruptive effect of the rotation on the child; (6) the reasonableness of the periods of time spent with each parent; (7) the relation of the periods of custody to divisions in the child's life, such as the school year, and (8) the parents' attitude toward one another or how their attitude will be perceived by the child. Bracken, 704 So.2d at 747 (citing Langford v. Ortiz, 654 So.2d 1237, 1238 (Fla. 2d DCA 1995)); MacConnell v. Cascante, 668 So.2d 668, 670 (Fla. 4th DCA 1996)."


10 In this author's opinion, it is more in "vogue" because of Florida's somewhat onerous child support obligations imposed on the parent who has less than 146(40%) overnight per year. However, for many parents this type of timesharing has worked out beautifully and has allowed the child to continue to have a strong bond with those parents.

11 See factor "o" above that states:
(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.


12 See Fla. Stat. 61.13(2)(c) that provides in the new 2008 version of the statute as follows: There is no presumption for or against the father or mother of the child when creating or modifying the parenting plan.
See also the case of Walczak v. Walczak, 763 So.2d 1055 (Fla.4th DCA 1999) in which the Court, interpreting a previous version of the statute, held that:

  1. The "Tender years" doctrine has been abrogated by statute and case law; and
  2. 2. "Florida Statutes and in this district by opinion in Kuutti v. Kuutti, 645 So.2d 80 (Fla. 4th DCA 1994)(en banc). Some of the trial court's comments lead us to believe that his decision to impose limitations on overnight visitation was based partially on the "tender years" doctrine.