What is Custody?

Perhaps the most contentious issue in all divorce cases is child custody. In an effort to encourage co-parenting, Florida has eliminated the term “custody” and replaced it with the terms “time-sharing” and "parental responsibility."

Prior to 1982, Florida applied the “tender years doctrine,” providing that only a mother could properly care for her children and creating a presumption that the mother should have custody. However revisions in 1982 and 1991 altered the presumption and both parents were considered to be on equal footing when it came to custody questions. It then became the court’s (or the parties’) decision to determine the “primary residential parent” or the parent which received more overnight timesharing. The “secondary residential parent” received less time with the child. In 1982, Florida also introduced the concept of shared parental responsibility, which suggests that both parents retain legal rights and responsibilities to parent the child. While the parent with the children in his or her care is able to make daily decisions regarding the child, neither parent, absent court order or agreement of the parties, has the superior right to make major decisions affecting the best interests of the child.

In October 2008, the Florida legislature revised Chapter 61 drastically, beyond merely changing the terms “custody” and “time-sharing.” The revisions removed the labels of “primary residential parent” and “secondary residential parent” as well as the concept of visitation. The revisions also added the concept of parenting plans, which is an agreement that outlines the parent’s address to determine school enrollment, overnights and timesharing with the children, the parental responsibilities of each parent, and any other parenting issues necessary to be included. They can also provide for decision-making authority for some or all of the parental responsibilities.

Perhaps the biggest changes to child custody law in October 2008 were the revisions and expansion of the factors the court is to consider when formulating or modifying the parenting plan. Florida Statutes § 61.13 pre-amendment included 13 “best interest of the child” factors to consider. The revised statute maintains a few of the previous factors, but removes several and replaces them with new factors, bringing the total number to 20. This provides an expansive list which seeks to ensure that the children are spending valuable time with fit parents.

What is the Current Law if "Custody" Has Been Eliminated?

As the law stands presently, parental duties are bifurcated between the physical care and time spent (time-sharing) and legal responsibility (parental responsibility). Time-sharing is the concept where parents physically have and care for their children and parental responsibility refers to the ability of one or both parents’ legal responsibility over the child. There is a presumption in Florida of shared parental responsibility, giving both parents the right to make (and agree upon) major decisions affecting the child.

If you need legal assistance with a time-sharing matter, please do not hesitate to contact us.