A Primer on Florida Custody Laws
Florida custody laws, like all family law matters, are governed by the Florida Statutes. The relevant statutes are contained within Chapter 61. The statutes regarding custody are contained both in 61.13 (the statute dealing with alimony and child support) and 61.30 (containing the child support guidelines).
The two custodial mechanisms employed in Florida are "parental responsibility" and "time-sharing." Parental responsibility is defined in Section 61.046 as "the legal right and responsibility custodial parent, or parents , have to make decisions regarding the minor child." Time-sharing refers to the time that the children spend with each parent. Timesharing can be equally split or no time sharing at all (where the child resides with one parent on a permanent basis, sometimes referred to as sole custody). Either way, when domesticating out of state custody orders in Florida, or in the context of a divorce and custody, it is important not to confuse parental responsibility with time sharing.
Everyone going through Florida divorce or paternity should familiarize themselves with the Statutes applicable to their case.
Father’s Rights in a Custody Dispute
Navigating the complexities of custody disputes is no small feat, and Florida law aims to keep fathers’ rights on a level footing with those of mothers. Understanding the legal landscape is the first step to making informed decisions and ensuring that both you and your child are well protected by the law.
Legal Rights
In Florida, a child’s mother and father have the same legal rights regarding their child. Additionally, Florida law describes the obligation to provide financial assistance for children as "parental responsibility" (F.S. 61.046(13)) – simply put, fathers are obligated just as mothers are. Thus, any language suggesting fathers are "the breadwinners" and mothers are "the caregivers" is somewhat misguided when it comes to Florida law.
Joint Custody
Also known as "shared parental responsibility," joint custody is the preferred arrangement in Florida. As per F.S. 61.13(2)(c), this type of custody order places equal responsibility for children on both parents. Though equal responsibility does not guarantee equal time with the child, it ensures that issues such as education, healthcare, and visitation are reviewed and agreed upon by both parents.
Even if one parent is awarded residential custody (a child’s primary residence), it’s important to note that both the child and each parent retain a strong legal interest. Regardless of the type of custody, both parents can expect the courts and the law to keep this interest in mind at all times.
Parental Rights after Separation
The ability of each parent to maintain a relationship with the child is one of the key considerations of Florida custody law. F.S. 61.13(3) essentially considers the number of days the child spends with each parent and the effect of this schedule on each child, in addition to such factors as potential changes to the child’s living environment, school, and community. In effect, fathers are afforded the right to maintain a relationship with their child, whether they possess residential custody or not.
Even in cases where joint legal custody is awarded, a parenting plan may be implemented wherein the child lives primarily with one parent. This option is considered when joint physical custody equitably divides the time between parents but may not adequately serve the best interest of the child. Here, the same general rights apply to both parents. For example, Florida law indicates that each parent has the right to unrestricted telephone contact with the child roughly six months after the parenting plan is finalized (F.S. 61.13(2)(c)(2)).
Proving Paternity in the State of Florida
Establishing paternity is an important step for fathers in Florida who want to share parental responsibilities and seek custody over their children. Paternity – the legal determination of a child’s father – helps ensure that fathers are recognized financially and legally as equal custodians of their children along with the maternal guardian. Establishing paternity can help you build a close bond with your child and become more involved in critical decisions made throughout their early years like school choices, religion, and healthcare.
The Florida Department of Revenue (DOR) creates Birth Registration and Acknowledgment of Paternity forms to assist with establishing paternity. Both parents must voluntarily sign the Acknowledgment of Paternity form in the hospital at the time of the child’s birth or fill out an Adult Acknowledgment of Paternity that has been completed by the DOR.
However, in cases where paternity cannot be established voluntarily, fathers throughout Florida can initiate the legal process by filing a Petition for Determination of Paternity. This petition includes father’s information, dates of birth, the child’s mother’s information, and details about the child, such as birthdate and county of birth. Following the filing of the petition, paternity testing and a court hearing will be scheduled.
In addition to determining who your child’s legal father is, a judge will also grant visitation rights for non-custodial parents and determine child support. Fathers cannot be ordered responsible for child support if paternity has not been established.
Although unmarried fathers in Florida have fewer protections than those for married fathers, it is essential to establish your legal parenting rights.
Custody Factors Considered by the Courts
When a divorce involves children, Florida courts first establish child support based on the Department of Revenue Child Support Guidelines in Florida, the amount to be paid by either parent depends on both parents’ income and the number of children involved. If custody is contested, the issue of parenting plans, time-sharing and/or residential responsibilities becomes central to the process.
How do Florida courts determine what residential responsibilities and/or time-sharing is appropriate? Each parent having equal time sharing because they have approximately the same time for work, etc…is not the standard. Once litigants have finished their mediation session, or if one party does not agree to the proposed parenting plan in its entirety, the Court has to consider and apply the "best interests" standard. The "best interests of the child" standard will be the top consideration in every case. The specific factors include the following:
- The capacity of each parent to provide a stable environment. This includes things like the home, neighborhood, school, etc. While this can all be considered, the standard is stability of the environment for the child.
- Each parent’s ability to meet the needs of the child (physical, emotional, mental and educational).
- The desire of the child to participate in the decision making – a child can express a preference regarding time-sharing, but it is not a determinative factor. The child has to be of sufficient age and maturity to make that expression.
- The geographic proximity of either parent to the other.
- The level of conflict between the parties.
- Substance abuse by either party.
- Control of all aspects of the children’s environment.
- Specific circumstances such as having special needs children, age of the child and preferences regarding child care providers,
- Other things that would affect the parent’s ability to meet the needs of the child.
What does this mean to you as a parent? It can be very complicated and time consuming to go through the court process. It generally involves appointments for sole parenting evaluations, collateral interviews with friends and family, professional evaluations, review of school and medical information, and may require an evaluation by a psychologist in some specialized cases involving abuse allegations.
Time-Sharing and Parenting Plans
Under Florida law, all parents – not just fathers – are entitled to spend time with their children. The Florida child custody law requires that parents divide their time with the child, which is known as "time-sharing." In other states, this division is known as "visitation."
Time-sharing can be equal, where the child spends 50% of their time with each parent, or it can be greater with one parent. There is no presumption in favor of equal time-sharing, but it is generally favored.
In general, for time-sharing purposes, there is essentially a rebuttable presumption in favor of equal time-sharing. Rebuttable means the presumption can be overcome. The factors relating to time-sharing preferences are in Florida Statute 61.13002. They are:
In practice, time-sharing usually falls in to either 50-50 or perhaps a 60-40 split in terms of the majority of cases. In rare cases , time-sharing where one parent has much more time-sharing than the other parent. In that case, the payor parent would also pay child support.
Florida statue 61.183 makes it clear that the Court can modify time-sharing when it is in the best interests of the child. Even if both parents were to reach an agreement about time-sharing, the Court can step in and modify the time-sharing schedule.
In a nutshell, there is no automatic presumption in favor of fathers (or mothers) when it comes to time-sharing. The factors the Court take into consideration are worth noting. The family courts are probably going to presume that it is better for the children to be with their fathers (and/or mothers) in most cases. In some cases, this presumption will be overcome.
It is helpful for fathers to remember that whatever time-sharing arrangement is in place, the Court has authority to modify the time-sharing plan if it is in the best interests of the child.
Parental Obstacles During Custody Disputes
The custody battle can be a challenging process for any parent, but it can be especially so for fathers. From the perception that mothers are often the default custodial parent to systemic biases and challenges in proving paternity, it can often feel like an uphill battle. One of the most common challenges fathers face is the perception that they are less concerned with being involved in their child’s life compared to the mother. This outdated stereotype can play out in several ways, from custody evaluators assuming the mother is the better parent to judges attempting to maintain the child’s status quo by awarding custody to the mother. As a father, be proactive to demonstrate your commitment to being an involved and loving parent. Many dads also have to prove that they are indeed the biological father of the child to have access to their parental rights. This may include undergoing genetic testing or relying on a paternity acknowledgement form from the mother if it has not been established through the court. Even if you are not listed as the father on the birth certificate, you can still file for paternity and request parental rights. Dads who were never married to the mother have additional hurdles because of the lack of a legal presumption of joint custody. This is why it’s critical to seek an order of paternity as soon as possible after the birth of a child so fathers aren’t forced to jump through additional hoops just to prove they are the child’s legal parent. Another issue many men face is the inability to file for partial custody when the mother agrees to give 50-50 parenting time. This means that the father will not be able to request half-time parenting time, even if he believes it is in the child’s best interests. Partial time-sharing is also not allowed unless there is a significant reason to do so, which may include a history of domestic violence, substance abuse or other illegal activities. Lack of communication between parents can be an additional pain point during a custody battle. If you’re faced with a high-conflict co-parent who refuses to cooperate or in some instances, acknowledge your rights as a parent, the situation may escalate quickly. In these instances, it’s critical to have an attorney battle for your rights inside and outside of the courtroom. Regardless of the challenges you may face, the most important thing is to stay focused on what’s best for the child. Your actions and behavior will all be used as evidence in a custody, paternity or child support case, and it’s important to always err on the side of what’s best for your child’s welfare. With the right Tampa child custody attorney on your side, you can begin fighting for your rights at every stage of the process.
Laws and Regs for Father’s Rights
At a broader level, national organizations such as the Fatherhood Project of the Emory University School of Medicine and the Fatherhood Institute are also working to promote and support father involvement. These organizations provide information, tools and community-level support for both fathers and families. Local legal aid offices may also be a resource. Florida’s Fifth Circuit is served by the Florida First Circuit, which covers Escambia, Okaloosa, Santa Rosa and Walton Counties in Northwest Florida. Through its Low-Income Taxpayer Clinic, legal aid in the Fifth Circuit assists individuals in tax-related disputes with the Internal Revenue Service. Legal aid also handles cases involving family law issues and custodial matters, depending on factors such as income and the amount in controversy.
The Florida First Circuit has a similar program for those living a little farther south, in Escambia, Okaloosa, Santa Rosa and Walton Counties. Outside the scope of the court system – but relevant to the issue of fathers’ rights more broadly – are groups such as the American Association for Caregiving Youth (AACY), National Leadership Coalition for the Family and the National Fatherhood Initiative. These organizations work across relevant government, professional and private sectors to advocate for legislative change, provide information, education and resources, and create programmatic initiatives for communities.
Conclusion: Father’s Guide to Custody Laws
In conclusion, understanding the various custody terms and navigating Florida’s custody laws are vital for fathers to ensure they can play an active role in their children’s lives. We’ve discussed the different types of custody agreements, such as joint parenting plans, shared parental responsibility, equal-time-sharing, timesharing plans, and more. We also discussed how many overnights with your child are considered full or equal time-sharing and how child visitation does not mean you have to give up your time with your child. It’s crucial to remember that each custody case is unique. Factors such as the child’s age, the parents’ living situation , and the child’s needs play a significant role in determining the best custody arrangement for everyone involved. As a father, staying well-informed and understanding your rights and responsibilities in terms of child support, parental relocation, and enforcement of family court orders is essential to maintaining a healthy, loving relationship with your child. Don’t hesitate to reach out for help. If you’re unsure of your rights or how to navigate a shared-parenting agreement, consult with a lawyer. The information contained in this article is not meant to constitute legal advice but rather educational insight into family law matters in the state of Florida.