Six Costly Mistakes in Timesharing Child Custody Cases in Florida
When going through a divorce, the timesharing schedule (commonly referred to as custody schedule), is often a disputed and contentious topic. While there is no presumption of 50/50 custody or timesharing, most judges in Central Florida start with the notion that they want each parent to spend as much time as possible with the minor child or children, unless there is a reason that the parent is unfit or unable to spend time with the child or children. In fact, section 61.13, Florida Statutes, provides, “it 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 child rearing. 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.” However, taking certain actions during your separation or divorce could adversely impact your ability to obtain a successful result when it comes to timesharing.
1. Not Knowing the Legal Standard
The legal standard used when determining timesharing is the best interest of the minor child or minor children. This means that the Courts must evaluate, as its primary consideration, whether the actions requested by either parent are in the best interest of the minor child or children. The Courts are not concerned with whether the schedule ordered is convenient to the parents. Rather, the primary consideration is simply the best interest of the minor child. When making a determination of the best interests of the child, the Court shall evaluate all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family. Section 61.13, Florida Statutes, further outlines twenty factors that the Court may consider when evaluate the best interest of the minor child.
2. Engaging in Domestic Violence
During a divorce or separation, arguments may arise, but it is imperative to avoid placing yourself in a situation where one party could claim that the other party engaged in domestic violence. Under Florida law, 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 misdemeanor of the first degree or higher involving domestic violence creates a rebuttable presumption of detriment to the child. Additionally, whether or not there is a conviction of any offense of domestic violence, the court shall consider evidence of domestic violence as evidence of detriment to the child. Domestic violence allegations or convictions make timesharing cases much more complicated, as the defending party must demonstrate to the court that he or she is a fit parent. While this can be done through proper argument and evidence, it essentially shifts the burden to the accused parent to demonstrate to the Court that he or she is fit and able to safely spend time with the minor child or children.
3. Alcohol or Drug Abuse
If either parent makes allegations regarding alcohol or drug abuse, it is imperative to address the issue immediately and aggressively. Courts take allegations regarding alcohol or drug abuse very seriously, especially when it involves minor children. If your spouse accuses you, or you believe he or she will accuse you, of drug abuse, it is important to obtain ongoing drug tests to demonstrate to the Court that the allegations are frivolous. Having a history of clean drug tests is an easy way to negate any allegations regarding drug use. Alternatively, if you believe the other party is abusing drugs, it is important to request court ordered drug testing early in the proceedings, so that you are able to legitimize the concerns to the court before the other parents tries to flush the evidence from his or her system.
Similarly, if either parent makes allegations regarding alcohol abuse, especially in the presence of a minor child, it is important to address these concerns early on during the case. In some situations, a stipulation that neither party will consume alcohol in front of the minor child may be appropriate. In other cases, it may be necessary to seek an alcohol evaluation to provide to the Court.
4. Unilaterally controlling the timesharing schedule without justification
In Florida, there is a strong presumption that is in the best interest of the child to have a relationship with both parents. In fact, section 61.13, Florida Statutes, takes into consideration whether the parents are able to communicate and be reasonable with each other as one of the factors that are considered when making a timesharing determination. Further, the Court strongly disfavors behavior that alienates the other parent. For example, if one parent is speaking negatively of the other parent in front of the child or posting disparaging items on social media about the other parent, it will not help your case and may even hurt your case. When making a determination as to what is in the best interest of the minor child or children, the Court will consider whether the parents are able to successfully co-parent. If the parents are taking deliberate actions to impede, inhibit, or harm the other parent’s ability to spend time with the minor child, without justification, the Court may reduce or eliminate that parent’s timesharing.
5. Relocating without permission of the Court
One of the faster ways to irritate a judge is to leave the state, without the permission of the other parent, and relocate with the minor child or children. Florida law provides that you are not permitted to move more than 50-miles, as the crow flies, from your current address without the permission of the other parent or the Court. This provision goes into effect at the time that the divorce is filed, which means that if you move prior to the divorce being filed, then the 50-mile provision would begin from your address as of the date of filing. If there is a prior timesharing order, then the 50-mile provision would be from the address as of the date of the last order establishing or modifying timesharing. Making a major unilateral move without the Court or other parent’s permission could be seen as adversely impacting your ability to co-parent with the other party, which may negatively impact your case.
6. Filing False DCF Reports
Department of Children and Family Services has an overwhelming case load without having parents make false reports against each other. Attempting to utilize DCF in order to gain leverage in a divorce or custody case is not only severely frowned upon by judges, but could subject you to criminal penalties. Any person who knowingly and willfully makes a false report or counsels another to make a false report is guilty of a felony of the third degree punishable by up to five years in prison. In addition, the DCF may impose a fine not to exceed $10,000 for each violation. DCF should not be utilized to settle disputes resolving parenting styles. If one parent believes that spanking is appropriate, and another parent does not utilize spanking, this would be an appropriate item to discuss as part of your timesharing case. It is inappropriate to involve DCF, unless there is a legitimate concern of abuse or neglect. Making false allegations with DCF will cause you to lose all credibility with the court and possibly subject you to criminal penalties, which could adversely impact your case.