Child Custody and Visitation Rights
Child custody refers to the physical and legal guardianship of a child(ren). In 2008, the Florida legislature amended existing Florida custody laws, and one change was in terminology away from “custody” and “child visitation” toward “parental responsibility” and “time-sharing” as many believed “custody” carried a negative connotation of control or possession and the new terminology was more humane and indicative of what, exactly, custody is.
Ensuring that your rights are protected while promoting the best interests of your child(ren) is critical. Nowhere is this more important than in determining custody and visitation arrangements that promote your child(ren)’s best interests.
Types of Custody
While most people have a cursory knowledge of what child custody is, many are unaware of the different types which parents can have.
- Physical custody—If you are granted physical custody by a court, you have the right to have your child(ren) live with you. Physical custody can be sole, primary, or joint.
- Sole custody—Sole custody occurs when your child(ren) lives primarily with one parent while the other has limited custody or visitation rights. Sole custody occurs primarily when one parent has been found to be unfit due to financial, medical, substance abuse, or other problems that may endanger the child(ren).
- Legal custody—If you are granted legal custody of your child(ren), you have the legal authority to make decisions regarding your child(ren)’s health, education, religion, upbringing, and any other relevant decisions.
- Joint custody—Joint custody can be joint physical, joint legal, or a combination of both. If a child(ren) will be living with both parents for substantial periods of time, a judge may grant joint physical custody, particularly if the parents live relatively close to each other. There is also joint legal custody in which you and your ex-spouse are equally entitled and legally responsible for making decisions regarding your child(ren)’s upbringing. Typically, if you and your ex-spouse share joint physical custody then you likely also share joint legal custody.
If you and your former spouse are awarded joint physical custody, you need to create a joint custody—or parenting—agreement that the judge must ratify. This agreement stipulates how you will share physical parenting duties.
How Do You Get Custody?
Florida Statutes § 61.13 sets forth the state’s custody laws. By default, the court generally awards shared parental responsibility unless there is parental conflict because the state places great emphasis on ensuring that both parents are involved in their child(ren)’s life and upbringing. Following a divorce—especially in a contentious divorce—determining what is in the best interests of the child(ren) becomes complicated.
There are two primary ways in which child custody is determined: the parents can create a child custody agreement together, or, in cases where the parents cannot agree, a judge will examine several factors and determines the custody arrangement in the best interests of the child(ren).
In determining custody arrangements, the judge looks at several factors including:
- Each parent’s physical and mental health
- Cultural and religious considerations
- The child(ren)’s age, gender, and wishes (if s/he is old enough)
- Maintaining a stable home environment
- Whether domestic violence exists
- Parental substance abuse
- Excessive discipline
- Extended family support
What About Visitation Rights?
Florida law promotes frequent and continuous contact with both parents following a divorce. There is neither a preference for or against either parent nor against any particular custody schedule unless any time-sharing arrangement is not in the child(ren)’s best interests.
Determining the best interests of the child(ren) involves examining and evaluating the child(ren)’s developmental needs, capacity of each parent, and environment in which the child(ren) will be visiting.
If your former spouse refuses to let you see your child, § 61.13(4)(c) provides visitation enforcement options. A non-compliant parent can be held in contempt of court, required to make up missed visitation, pay the other spouse’s attorney fees, and/or attend parenting classes.
Additionally, either you or your former spouse can request or modification of visitation agreements. Doing so is complicated and utilizing the professional services of a qualified and experienced family law attorney can help you get the results you seek to ensure your child(ren)’s best interests are protected.
What Is A Parenting Plan?
A parenting plan is a document signed by both parents and approved by the court that relates to all aspects of the children’s functioning life. The parenting plan outlines in fine detail how the parents will take care of the children. It includes: a timesharing schedule, daily tasks of the children shared by both parents, health care, education, and all physical, emotional and social well-being of the children.
It also includes how the parents will communicate with the children in this technologically advanced society. At Frost Law, we have all the necessary documents to create a parenting plan. Frost Law will spend as much time as needed to go over every detail of the parenting plan with you to find the best solution for you and your family.
Timesharing for the children is the most important part of the parenting plan. It will require meetings and negotiations for both parents. The timesharing plan documents the exact dates which parent will be taking care of the children. There are ten different options to consider for sharing of the children. If none of those are agreeable the parents can come up with their own timesharing plan.
The most favorable option is the even split 50/50 of residing with each parent. For example, a 2/2/3 overnight share would be the mother gets two overnights, the father 2 overnights and then the mother for 3 overnights. The cycle would repeat with 2 overnights for the father, overnights for the mother and then 3 overnights for the father. There are many other options as schedules permit. Most importantly, the parents must work amicably to create a functional timeshare. Also included in the timeshare are where the children spend holidays, school breaks and the summer off from school.
Florida law has some prescribed factors that the court must consider when deciding timesharing:
- Which parent will hold the major responsibility to maintain a relationship.
- Which parent will be more flexible or more able to be flexible with the timesharing plan.
- Which parent will be more willing to delegate responsibilities to third parties.
- The child be placed in a safe environment.
- The distance between both parents’ homes.
- What is the moral fitness of each parent.
- The health and stableness of each parent.
- The preferences of the children.
- How involved each parent is involved in the children’s schooling and outside activities.
- Can both parent’s are willing to maintain a consistent environment for the children.
- Can the parent’s communicate with each other in an amicable manner.
- Can the parent’s be willing to be unified on major issues.
- Any evidence of domestic or sexual violence, child abuse, neglect, abandonment.
- Has any parent made false states to the court.
- Is there any substance abuse.
- Are there any developmental needs of the children.
Creating the best parenting plan most often needs a parenting evaluator. Often the two divorce lawyers will work together to get the best parenting evaluator. Experienced child custody attorney Chad Frost will work with you to find a good professional parenting evaluator to work side by side to fit your parenting plan needs. The professional parenting plan evaluator will investigate the facts and circumstances of the family and then compile a report. The report is submitted to the court. The court most often takes the advice of the professional evaluator.
Frost Law is Here to Help
Being an active parent is critical for both parents and their children. Following a divorce, child custody, time-sharing, and visitation arrangements can get messy and cause unnecessary stress and problems. Thus, it is important to find a skilled, knowledgeable, and empathetic child custody attorney to ensure that you retain all of your rights during this difficult time.
If you are looking for an experienced child custody attorney in Orlando, FL, you’ve come to the right place. Call us today at 407-670-5569 or contact us on our website for a free consultation about your case.