I Have or I Want Sole Custody

Client: “I have or I want sole custody.”

Attorney: “Do you understand what that means?”

As with time-sharing, many parents often misunderstand or misuse the designation of “custody”. We already discussed parenting plans in a previous blog post. Now let’s look further into the inner aspects of parenting under Florida law.

Florida Statutes § 61.13(2) provides that all matters relating to parenting and time-sharing of each minor child must be determined in accordance with the best interests of the child and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). After agreed to in writing or established by the court, a parenting plan can only be modified after a showing of a substantial, material, and unanticipated change of circumstances. Do not enter into a final parenting plan or time-sharing schedule with the misunderstanding that you can ALWAYS change them in the future. Modifications are not as simple as many parents believe.

Florida has a public policy that each minor child have frequent and continuing contact with both parents after the parents’ relationship deteriorates and they separated. The children are not intended to suffer as a result of their parents’ inability to co-reside or co-parent. Parents are encouraged to continue to share the rights, responsibilities, and joys, of childrearing as if the family were intact. There is no presumption for or against a parent based on gender, or for any specific time-sharing schedule, or for any aspect of childrearing (i.e., Florida is NOT a 50/50 state).

There are three (3) forms of decision-making in terms of co-parenting in Florida. The amount of time the child spends with each parent is separate and distinct from the decision-making for the children. The parents can agree, or the court can order:

Shared Parental Responsibility
Shared Parental Responsibility with ultimate decision making
Sole Parental Responsibility

The court will order shared parental responsibility for a minor child for both parents unless it finds that shared parental responsibility would be detrimental to the child. Certain actions are presumptively detrimental and are likely to result in limited or no parental responsibility or time-sharing with the offending parent, such as:

conviction of specified misdemeanors involving domestic violence
conviction of crimes involving harm to the child
evidence (without a conviction) of domestic violence or abuse
certain acts of child abuse, abandonment, or neglect

If parents do not agree and the court determines that shared parental responsibility would be detrimental to the child, sole parental responsibility may be appropriate, and one parent may be entitled to make all decisions regarding the upbringing of the minor children. This is what “sole custody” actually is under Florida law. Sole custody is the rare exception and certainly not what is presumed to be in the child’s best interests. However, the court will order sole parental responsibility for a minor child to one parent, with or without time-sharing with the other parent, if it is in the manifest best interests of the minor child.

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 will consider evidence of domestic violence or child abuse as evidence of detriment to the child.

The court can consider the parents’ expressed desires and may grant to one parent the ultimate responsibility over specific aspects of the child’s welfare or divide those responsibilities between the parents based on the best interests of the child. Areas of responsibility may include:

education
health care
extracurricular activities
any other responsibilities that the court finds unique to a particular family

No matter the form of parental responsibility, both parents retain the right to access a minor child’s records and information. This right includes in-person communication with medical, dental, and education providers unless a court order specifically revokes these rights. Remember that the child’s best interests is the primary concern and the foundation upon which all decisions are made.

If parents cannot agree as to what is best for their child, the court will consider all facts and circumstances unique to that family, including:

parents’ ability and desire to encourage the child’s relationship with the other parent
parents’ ability to put their child first and reasonableness in making changes for the child’s best interests
parents’ ability to communicate and willingness to work together
parenting responsibilities before or after separation and responsibilities delegated to third parties
the child’s stability and parents’ ability to meet the child’s developmental needs
geographic distance of parents
child’s logistical needs for school and activities, and the parents’ participation or involvement
parents’ moral fitness, and mental and physical health
child’s position and record at home, school, and in the community
if appropriate, the child’s preference (there is no set age)
how well the parents know or care to know about the child
the child’s routine with parents
domestic or sexual violence, child abuse, abandonment, or neglect (even if not convicted)
parents’ false information or claims about domestic or sexual violence, child abuse, abandonment, or neglect
shielding the child from exposure to substance abuse, and from adult issues and parenting disputes

To learn about parental responsibility, time-sharing, minimizing high conflict disputes with your co-parent, or assessing what is best suited for your family, feel free to contact our family law attorneys for an initial consultation.

Natalie Kay
Partner, Family Law
Kelley Kronenberg-Fort Lauderdale, FL.
(954) 370-9970
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DISCLAIMER: This article is provided as a courtesy and is intended for the general information of the matters discussed above and should not be relied upon as legal advice. Neither Kelley Kronenberg, nor its individual attorneys or staff, are responsible for errors, omissions and/or typographical errors – always seek competent legal counsel.