Shared Child Custody Time With Each Parent: Misconceptions About the Law
By Orlando Divorce and Paternity Attorney Eduardo J. Mejias
Practicing Exclusively Family Law in Florida Since 2011
Issues of Sharing the Custody of Children Are The Most Contentious and Misunderstood In Divorce and Paternity Cases
While divorce and paternity cases without children can be contentious, issues around the sharing of the time devoted to the care of couple's children are the most contentious. They are at the core of most family law disputes. Whether in a divorce or a paternity action, family law attorneys spend more time on issues regarding the sharing of child custody than on any other topic. Likewise, for their clients, the issues surrounding their children typically cause them to lose the most sleep.
In addition, the law on this subject is frequently misunderstood. These are the three most common misconceptions about the treatment of child custody in Florida family law:
(1) There Is No "Primary Child Custody", "Full Custody", "Sole Custody or "50-50 Custody" in Florida
First, let us refer to this issue by its more appropriate name: "child custody time sharing", because the custody time of the children is what is being shared (though in Florida family law this is abbreviated as "time sharing"). Though people sometimes speak generally of child custody, parents in divorce and paternity cases have not had to fight for "full custody”, "sole custody" or "primary custody" of their children since 2009.
At that time, the Florida Legislature abolished the terms “primary custody” and “sole custody” in the laws on divorce and paternity actions. It replaced these terms with the more neutral phrase "time sharing", which is a form of child shared custody. The Legislature no longer wanted the parent with a lower percentage of the child care time to be burdened with the connotations of being less important to their children. While the primary custodial parent did not necessarily used to enjoy superior rights to the children, that label always carried with it the perception of a higher ranking. Hence, the change to the generic, neutral and inoffensive "time sharing".
Today, even if you are granted the majority of time with your children, this does not mean that you obtain “custody” or that you enjoy a privileged parental status. It simply means that the children will spend more overnights with you than with the other parent. Nothing more, nothing less.
(2) There Is No Set Percent Of Child Shared Custody Time
However, this shift away from “custody” to "time sharing" created the misconception with some parents that they are entitled to an equal, or “50-50” time share custody schedule. Not true! Fueling this confusion is the movement in the Florida Legislature to pass a bill that creates a “rebuttable presumption” in favor of “50-50” custody in divorce and paternity cases. In fact, Senate Bill 250, which would make this rebuttable presumption the law, has been discussed by the pertinent Florida Senate Committees. However, it has not become the law. Read The Time Has Come For Equal Custody Time Sharing for more information on this topic.
(3) Many Factors Affect the Percent of Child Time Sharing Assigned to Each Parent
As of the date of this writing (August 9, 2018), no presumptions in favor of any time sharing schedule or parenting plan exist in Florida. Family court judges base this type of shared custody decisions on the particular facts of each case and "evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family, including, but not limited to:" followed by a list of twenty factors in Section 61.13(3), Florida Statutes.
When I meet with a prospective family law clients who will be litigating over the sharing of their children's care, I personally review with them the nineteen specific criteria, labeled (a) through (s) of (3) in Section 61.13. To make matters even more complex, there is also a “catch-all” 20th factor, (t), which is “Any other factor that is relevant to the determination of a specific parenting plan, including the time sharing schedule”.
The lesson here is that there rarely are simple answers to questions about a custody time sharing plan. No one factor, presumption, or event will dictate the outcome. Instead, a comprehensive review of the entire array of relevant facts is needed to make the final decision regarding how care or custody of the children are to be shared in a divorce or paternity action.
Call Us To Schedule An Initial Consultation
If you have any questions about time sharing the custody of your children in a divorce or paternity case, please call AAA Family Law at (407) 260-6001 and schedule an initial consultation. I will listen to the family law issues that affect you, describe the plan of action to help you achieve your objectives and protect your rights to the fullest extent of the law. Than I will quote you a fixed retainer fee, not an hourly rate whose total payment you will only know at the end of the case. I look forward to meeting you.
For more information on the retainer fees, including court costs and the ranges of these fees for each type of family law case, please click on Family Lawyer Retainer Fees.
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