Child Custody

The guiding principle in all cases involving custody and visitation is always «the best interest of the child.» Judges do not want parents finger pointing at each other, but just want to hear the facts. For example, suppose a case involves a non-custodial parent who rarely visits with his/her child. The custodial parent should testify that the child would be better off seeing the other parent more often, rather than saying the other parent doesn’t love the child or that it is wrong that he/she does not see the child more often. It is better that I do my clients’ «dirty work» rather than having the clients cast stones.

Family law judges do not want emotions in their courtrooms, particularly regarding custody and visitation issues, in order to objectively get to the heart of the facts and to maintain order in their courtrooms. Therefore, I always recommend and instruct my clients to watch their body language in court, whether or not they are testifying. A client who interrupts a judge, opposing attorney, or me, who points is rude or overly expressed to the other parent, may negatively affect the outcome of a case.

The word «custody» and «primary residential care» mean the same thing. That is, the parent who receives «custody» is designated as the «primary residential custodian.» The parent who receives visitation is the «secondary residential custodian.» Men and women now truly have equal rights to receive custody (even of infant children) under Florida law. However, if a wife has been a stay-at-home mother for many years during a marriage and the husband has worked full-time, the wife would most likely be awarded custody assuming all other things were equal (which, of course, is not always the case). An important consideration is whether one parent significantly interferes with the other parent’s visitation with their child(ren). In fact, this consideration is the first factor in Florida Statute 61.13(3) which lists the factors which a judge must weigh in awarding custody.

«Rotating custody» was strongly disfavored in the past particularly if parents do not get along well for the child(ren)’s sake, they reside far apart, and/or the child(ren) need a greater sense of «home» than a rotating custody arrangement might provide. However, there is a trend is toward judges reviewing each request for rotating custody on a case by case basis. Florida Statute 61.121 (effective 1997) provides that a court may order rotating custody if the it is in the best interest of the child(ren). However, this statute still does not change the presumption that rotating custody is not in a child(ren)’s best interest. Therefore, an expert witness (e.g., a child psychologist) should be generally be used — whether hired by either party or appointed by a judge. Normally, child support will have to be paid even in this type of custody, unless both parents have approximately the same net incomes.

«Split custody» is the term used when the custody of two or more children are split between the parents. This form of custody is strongly disfavored by family law judges and generally will not be permitted even if agreed to by the parents. However, exceptional reasons may exist to justify split custody, such as perhaps one child with severe behavioral problems being much older or younger then the other child(ren) and a child psychologist recommending split custody.

Although the term «joint custody» is often used by non-lawyers, there is no such form of legal custody. A concept that is sometimes confused with «joint custody» is «shared parental responsibility.» Under Florida Statute 61.13(2)(b)2., parents must share in making all important decisions and information about their child(ren), unless a court is shown that sole parental responsibility is appropriate. «Shared parental responsibility» is defined by Florida Statute 61.046(15) and case law as a court-ordered relationship in which both parents retain full parental rights and responsibilities with respect to their child(ren), and in which both parents confer with each other, so that major decisions affecting the child(ren)’s health, education, religion, and welfare will be determined jointly. Parents who fail to create in the minds of their child(ren) a loving, caring feeling toward the other parent can be subject to contempt, loss of residential custody, and other sanctions. Shared parental responsibility does not apply, however, to the insignificant, day-to-day decisions regarding child(ren). Each parent must attempt to ensure that their child(ren) maintain unhampered contact and free access with each parents. While the child(ren) is residing with one parent, that parent must encourage communication, whether by phone, email, or mail, with the other parent. The child(ren) must continue to be known by his/her legal surname. Interestingly, a court or the parties themselves by written agreement, could designate either or both parents to be responsible for selected aspects of the child/ren’s lives. For example, one parent could be selected as the parent primarily responsible for the child(ren)’s religious upbringing, while the other parent could be selected to be primarily responsible for the child(ren)’s educational needs.

Because of potential emotional trauma to a child, it is rare that a judge will permit a minor child to be called or subpoenaed as a witness in a custody case. An attorney is required to obtain prior court permission by filing a motion and having the motion approved at a hearing. The exception to the rule against child testimony would be perhaps if a child were of sufficient age and emotional maturity, and had a very strong preference. However, even if these factors existed, a judge could still deny child testimony and rely on alternative means of having the child’s preference made known to the judge. Alternatives would be having a child custody evaluation («social investigation and home study») conducted pursuant to Florida Statute 61.20 or through by a court-appointed child psychologist, under Florida Statute 61.122, who would prepare a report with factual findings and recommendation to the judge. Each party maintains the right to hire a private child psychologist, subject to the judge’s approval.

A judge must consider the following factors per Florida Statute 61.13(3) in deciding which parent should receive custody:

(a) Which parent is more likely to allow meaningful child visitation.
(b) The love and emotional ties between each parent and the child/ren.
(c) The ability of each parent to provide the child/ren with necessities, medical needs, and similar material needs.
(d) How long the child/ren has lived in a stable environment with either or both parents and the desirability of maintaining it.
(e) The permanence, as a family unit, of the parent’s home environment.
(f) The moral fitness of each parent.
(g) The mental and physical health of each parent.
(h) The home, school, and community record of the child/ren.
(i) The custody preference of the child/ren if mature enough to express a preference.
(j) The willingness and ability of each parent to encourage a close relationship between the child/ren and the other parent.
(k) Evidence that either party knowingly filed a false domestic violence petition.
(l) Evidence of domestic violence or child abuse.
(m) Any other relevant fact.

«Relocation» involves the custodial parent seeking to move away with the parties’ child(ren). In 2006, the Florida legislature enacted Florida Statute 61.13001 which has redefined «relocation» as moving 50 miles or more from the non-custodial parent’s residence. Under old case law, relocation was usually interpreted to mean moving outside of the State of Florida. Under the new law, a parent who received custody and wants to relocate must now file and serve a written notice upon the non-custodial parent and prove, by detailed information and reasons, why relocation should be granted. The non-custodial parent, after filing a written response with 30 days has the right to an evidentiary hearing before a judge. The Notice of Intent to Relocate upon the other parent and all other persons who have court-ordered custody and/or visitation rights. The Notice must include the following information:

  1. A description of the neighborhood and area.
  2. The address of the intended new residence.
  3. The phone number of the intended new residence.
  4. The date of the intended move or proposed relocation.
  5. The reasons for the proposed relocation. If one of the reasons is based upon a written job offer, the offer must be attached.
  6. A proposed visitation schedule, and transportation arrangements.

The Internal Revenue Code presumes that the parent who is awarded custody is entitled to the «child dependency exemption» for each child of the marriage. However, if the non-custodial parent has a significantly higher income than the custodial parent, if the custodial parent is unemployed or has a low income, a judge will award the exemptions to the non-custodial parent on a yearly basis. That parent’s child support obligation must then be recalculated (increased) due to the higher income due to receiving the exemption(s). The custodial parent will not lose her/his child care credit and is required to complete an I.R.S. Form 8332 and attach it to her/his federal income tax return each year.

In all custody cases, I advise clients to start diaries. The diary should include facts only and should not contain emotional language, overstatements, understatements, conclusions, opinions, or summaries. The entries should be made on the same day of the occurrence. Although a diary is hearsay, it can be used into evidence at a hearing or trial to refresh a client’s memory.