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How Does a Court Determine Child Custody or Timesharing

Many people believe that because they have spent more time with a child or have been the primary caretaker of a child that they will be granted more timesharing. This is not the case under Florida law. Florida statute section 61.13(2)(c) requires parenting plans and time-sharing plans be determined in accordance with the “best interests of the child.” Fla. Stat. § 61.13(2)(c) (2014). Under Florida Statute section 61.13(3), the best interests of the child or children are determined by evaluating twenty factors. See Fla. Stat §61.13(3) (2014). These 20 factors are outlined below for your reference. The law is clear that denying or restricting visitation rights is disfavored, unless it is necessary to protect the welfare of the children. See Davis v. Lopez-Davis, 2014 Fla. Ap. LEXIS 5159 (Fla. 4th DCA 2014); Allen v. Allen, 787 So. 2d 215, 217 (Fla. 5th DCA 2001), review denied, 800 So. 2d 612 (Fla. 2001). Additionally, Florida Statute section 61.13(2)(c)1 provides:

[i]t is the public policy of this state that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and 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 of the child. (2014).

“Shared parental responsibility is statutorily required unless the court specifically finds that it would be detrimental to the children.” Rashid, 35 So. 3d at 994; see also Fla. Stat. §61.13(2)b(2) (2014). While the trial court is not required to make specific findings regarding every factor, the trial court is required to find that the time-sharing schedule was in the best interests of the children and that shared parental responsibility was detrimental to the children. See Longo v. Longo, 576 So. 2d 402 (Fla. 2d DCA 1991); Winters v. Brown, 51 So. 3d 656, 658 (Fla. 4th DCA 2011).

It is imperative that anyone going through a divorce with children, a paternity action, or a modification of timesharing action be aware of the elements the courts consider when determining timesharing. Angry and stupid mistakes can be detrimental to your case. It is important to ask yourself, what would a Judge think about my actions or conduct? Additionally, you should always consider whether your actions are in the best interest of the child or children.

For your reference, I have outlined the 20 factors to be considered by the Court pursuant to Florida Statute Section 61.13(3) (2014).
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. 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.

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.