Child custody in Florida

What the law tells the judge to look at

In the order the law lists them.

1. How well each parent has shown they can and will support a close, continuing relationship between the child and the other parent, follow the time-sharing schedule, and be reasonable when changes are needed.Fla. Stat. § 61.13(3)(a)
2. How parenting duties will be divided after the case, including how much will be handed off to other people.Fla. Stat. § 61.13(3)(b)
3. How well each parent has shown they can find out and act on the child's needs, not the parent's own needs or wishes.Fla. Stat. § 61.13(3)(c)
4. How long the child has lived in a stable, good home, and how important it is to keep things the same.Fla. Stat. § 61.13(3)(d)
5. Whether the parenting plan works with where the parents live, especially for school-age children and the time spent traveling. This does not create a presumption for or against a parent moving.Fla. Stat. § 61.13(3)(e)
6. The moral fitness of the parents.Fla. Stat. § 61.13(3)(f)
7. The mental and physical health of the parents.Fla. Stat. § 61.13(3)(g)
8. The child's record at home, at school, and in the community.Fla. Stat. § 61.13(3)(h)
9. The child's reasonable preference, if the judge finds the child is smart, understanding, and experienced enough to have one.Fla. Stat. § 61.13(3)(i)
10. How well each parent knows the child's life, such as friends, teachers, doctors, daily activities, and favorite things.Fla. Stat. § 61.13(3)(j)
11. How well each parent can give the child a steady routine, such as discipline and set times for homework, meals, and bed.Fla. Stat. § 61.13(3)(k)
12. How well each parent communicates with and informs the other parent about the child, and is willing to present a united front on major issues.Fla. Stat. § 61.13(3)(l)
13. Evidence of domestic violence, sexual violence, child abuse, abandonment, or neglect, or a parent's reasonable belief that they or the child are in danger of domestic violence, even if no case was filed. If the judge accepts this kind of evidence, the judge must say in writing that it was considered.Fla. Stat. § 61.13(3)(m)
14. Evidence that a parent knowingly gave the court false information about domestic violence, sexual violence, child abuse, abandonment, or neglect.Fla. Stat. § 61.13(3)(n)
15. Which parenting tasks each parent usually did, and how duties were divided before and during the case, including what others did.Fla. Stat. § 61.13(3)(o)
16. How well each parent takes part in the child's school and activities.Fla. Stat. § 61.13(3)(p)
17. How well each parent keeps a home free from substance abuse.Fla. Stat. § 61.13(3)(q)
18. How well each parent keeps the child out of the court case: not discussing it with the child, not sharing case papers or media with the child, and not saying bad things about the other parent to the child.Fla. Stat. § 61.13(3)(r)
19. The child's stage of development and needs, and how well each parent can meet them.Fla. Stat. § 61.13(3)(s)
20. Any other factor that matters for the parenting plan and time-sharing schedule.Fla. Stat. § 61.13(3)(t)

Other things the judge considers

• Florida policy is that each child should have frequent and continuing contact with both parents after they separate, and parents should share the rights, duties, and joys of raising the child.Fla. Stat. § 61.13(2)(c)1.
• Unless the parents agree on a schedule the court approves, the judge must evaluate all the factors in § 61.13(3) and make specific written findings when creating or changing a time-sharing schedule.Fla. Stat. § 61.13(2)(c)1.
• In deciding whether shared parental responsibility would harm the child, the judge must consider evidence of domestic violence, a parent's reasonable belief that they or the child are in danger of domestic or sexual violence by the other parent, a reasonable belief that the child is in danger of abuse, abandonment, or neglect by the other parent, and any other relevant factor.Fla. Stat. § 61.13(2)(c)2.
• The court may require that children be exchanged at a neutral safe exchange location or a supervised visitation program if there is a risk of harm during exchanges.Fla. Stat. § 61.13(2)(b)5.

What the judge may not consider

The judge may not deny shared parental responsibility or time-sharing to a parent only because the parent has, or is believed to have, HIV.

Joint custody

Yes. Unless the parents agree otherwise, the law presumes that equal time-sharing is in the child's best interest. A parent who wants a different schedule must prove by a preponderance of the evidence that equal time-sharing is not best for the child. The judge must also order shared parental responsibility unless it would be harmful to the child.

The child's wishes

The judge considers the child's reasonable preference if the judge finds the child is intelligent, understanding, and experienced enough to express one. The law does not set an age.

Domestic violence

Evidence of domestic violence or child abuse must be considered as evidence that shared parental responsibility would harm the child, even without a conviction or an injunction. The law presumes shared parental responsibility is harmful if a parent was convicted of a first-degree misdemeanor or higher involving domestic violence, or meets certain child-abuse or sex-offense criteria. If that parent does not overcome the presumption, the parent cannot get shared parental responsibility, time-sharing, or decision-making, but still must pay support. The judge can order sole parental responsibility and a schedule that protects the child or abused parent. There is also a presumption against any time-sharing for a parent convicted of certain sex offenses against a minor, unless the judge finds in writing that the parent poses no significant risk.

Who has custody before a court order

If the parents are not married and paternity has not been legally established, the mother is the child's natural guardian and is entitled to primary residential care and custody of the child unless a court orders otherwise. Once paternity is established, both the mother and father are natural guardians with the rights and duties of parents. A parenting plan and time-sharing schedule must still be set in a court case.

Establishing paternity

How

At the hospital, the father and mother can sign the Paternity Acknowledgment (DH-511) in front of a notary the hospital provides. This option cannot be used if the mother is married. Any time before the child turns 18, both parents can sign the Acknowledgment of Paternity (DH-432), also available in Spanish. Either signer can cancel (rescind) it within 60 days after signing, or before the date of a court or administrative case about the child (such as a support case) in which the signer is a party, whichever is earlier. After 60 days it is a legal finding of paternity and can only be challenged in court for fraud, duress, or a material mistake of fact. The Department of Revenue can also establish paternity, or a judge can in a paternity case. Signing does not set a time-sharing schedule; that requires a court case.

Form

Paternity Acknowledgment (hospital) / Acknowledgment of Paternity (DH-511 (hospital); DH-432 (after birth, before age 18))

Agency

Florida Department of Revenue, Child Support Program (paternity) and Florida Department of Health, Bureau of Vital Statistics
https://floridarevenue.com/childsupport/Pages/paternity.aspx

Changing an order

A parenting plan, time-sharing schedule, or parental responsibility can be changed only if you show a substantial and material change in circumstances and that the change is in the child's best interest. If the parents lived more than 50 miles apart when the last time-sharing order was made, and a parent moves within 50 miles of the other parent, that move can count as a substantial and material change. If a parent refuses to follow the time-sharing schedule without good cause, the other parent can ask the judge to change the plan.

Law: Fla. Stat. §§ 61.13(2)(c), 61.13(3), 61.13(4)(c)6.

If the other parent does not follow the order

If a parent refuses to follow the time-sharing schedule without proper cause, the judge must give the other parent enough extra (make-up) time to cover what was missed, at the refusing parent's expense and at times convenient for the parent who missed time. The judge may also order the refusing parent to pay court costs and attorney's fees, take a parenting course, do community service, pay costs of contact if the parent and child live more than 60 miles away, change the parenting plan, or face other reasonable sanctions, including contempt. Not paying support does not allow a parent to refuse time-sharing, and refused time-sharing does not allow a parent to stop paying support. Use the Motion for Civil Contempt/Enforcement (form 12.960).

Law: Fla. Stat. § 61.13(4)

Grandparent visitation

Yes, but only in narrow cases. A grandparent (including a great-grandparent) can file only if both parents have died, are missing, or are in a persistent vegetative state, or if one parent has died, is missing, or is in a persistent vegetative state and the other parent has been convicted of a felony or a violent offense showing a substantial threat to the child. At a first hearing, the grandparent must make a basic (prima facie) showing that a parent is unfit or that the child will suffer significant harm, or the case is dismissed and the grandparent may have to pay the parent's fees. The case then goes to family mediation. The grandparent must prove by clear and convincing evidence that a parent is unfit or the child will suffer significant harm, that visits are in the child's best interest, and that they will not materially harm the parent-child relationship. If one parent was held criminally liable (or civilly liable for an intentional tort) for the other parent's death, the law presumes visits by that deceased parent's parent are reasonable unless not in the child's best interest. A grandparent can usually file only once every 2 years.

Custody by someone who is not a parent

An extended family member can ask the circuit court for temporary or concurrent custody if they have the parents' signed, notarized consent, or if they are caring for the child full time as a substitute parent and the child lives with them. Concurrent custody also requires that they have (or recently had) physical custody and lack papers from a parent that would let them care for the child.

Custody and visitation in the order

Yes. A temporary (ex parte) injunction can give you a temporary parenting plan with up to 100 percent of the time-sharing. A final injunction can set a temporary parenting plan and time-sharing schedule, which can limit time-sharing or require supervision. If the other parent gets temporary time-sharing, exchanges must happen at a neutral safe exchange location or a supervised visitation program if the court finds that is best for the child. There is no filing fee.

Military parents

Florida has adopted the Uniform Deployed Parents Custody and Visitation Act. A parent who is a service member must tell the other parent in writing about a pending deployment within 7 days after getting notice of it (unless military duties prevent it), and share a proposed plan for the child during deployment as soon as reasonably possible. A judge may not consider a parent's past or possible future deployment in deciding the child's best interest. The Act also lets parents make a written agreement, or ask the court, for custody arrangements that last only during the deployment.

Law: Fla. Stat. §§ 61.703-61.773 (esp. 61.709, 61.713)

Preventing abduction

Form: Verified Motion for Temporary Injunction to Prevent Removal of Minor Child(ren) and/or Denial of Passport Services (Fla. Fam. L. Form 12.941(a)); the court can also order a bond or other measures if there is a risk a party will remove or hide the child.

Law: Fla. Stat. § 61.45