Learn about changes in the Time-Sharing and Equitable Distribution laws that can affect you. Carolyn S. Zisser
A ROADMAP THROUGH THE LEGISLATIVE AMENDMENTS TO THE PARENTING/TIME-SHARING AND THE EQUITABLE DISTRIBUTION STATUTES
PARENTING / TIME SHARING
The parental responsibility statute, effective October 1, 2008 replaces a substantial portion of Florida Statute 61 and other related statutes. The best way to understand the far reaching changes is to examine the “red lined” version of the Senate Bill, which is attached.
- Parenting Plan:
- Changes in Terminology: The New Name: The title to Florida Statutes 61 will be changed from “Dissolution of Marriage; Support; Custody to “Dissolution of Marriage; Support; Time Sharing”. Terminology changes eliminate the distinctions between custodial and non-custodial parents. “Primary residential custody” and “visitation” are replaced by “time sharing” or “parties to a time-sharing schedules set forth in the parenting plan” Florida Statute 61.046(13) and (22). Contested Issues with regard to the care of children will now relate to contested “Parenting Plan” litigation.
- 61.046 Definitions
- Parenting Plan
(13) “Parenting Plan” is a document created to govern the relationship between the parties related to the decisions that must be made regarding the minor child and shall contain a time-sharing schedule for the parents and child. The issues concerning the minor child may include, but are not limited to the child’s education, healthcare and physical, social and emotional well-being. In creating the plan, all circumstances between the parties, including the parties historic relationship, domestic violence, and other factors must be taken into consideration. The Parenting Plan shall be developed and agreed to by the parents and approved by the Court. If the parents cannot agree, established by the Court.
- Parenting Plan
- Time Sharing Scheduled:
(22) “Time-sharing Schedule” – Means a timetable that MUST be included in the parenting plan that specifies the time, including overnights and holidays, that minor child will spend with each parent. If developed and agreed to by the parents of a minor child, it MUST be approved by the Court. If the parents cannot agree, the schedule shall be established by the Court.
(Quere – whether the agreed upon parenting plan must be approved by the court.) (Emphasis Added)
- Shared v. Sole Parental Responsibility
Florida Statutes 61.13(2)2 with regard to Shared Parental Responsibility and Sole Parental Responsibility is basically unchanged except that the terms visitation and residence have been replaced by “time-sharing” as specified in the “parenting plan.”
- Mandatory Requirements of the Parenting Plan:
- All jurisdictional issues, including but not limited to the Uniform Child Custody Jurisdictional and Enforcement Act, UCCJEA, Part II of this Chapter, The International Child Remedies Act 42, USC ss. 1601 et sec., The Kidnapping Prevention Act, and the Convention on Civil Aspects of International Child Abduction enacted as the Hague of on October 25, 1980. – Florida Statutes 61.046(B)(a)
- A judgment or order incorporating a parenting plan is a child custody determination under Part II of Florida Statutes 61 for the purpose of the UCCJEA.
- The parenting plan determines the “right of custody” under the International Child Abduction Remedies Act, USC ss 11601 et seq., and the Convention on the Civil Aspects of International Child Abduction, enacted at the Hague on October 25, 1980.
- Must describe in adequate detail:
- How parents will share and be responsible for the daily tasks associated with the upbringing of the child;
- Time-Sharing Schedule arrangements which specify the time that the minor child will spend with each parent;
- Designate which parent “will be responsible for any and all forms of healthcare, social related matters, other activities; and communicate with the child”; and
- Methods and Technologies that the parents will use to communicate with the child. (FS 61.13(2)(b))
- Effect of Rotating Custody
The term “Rotating Custody” is now obsolete as it may be included as equal time-sharing by parents referred to as a type of “time-sharing schedule” set forth in a “parenting-plan” or ordered by the Court. The presumption against rotating custody is eliminated by repeal of Florida Statues 61.121 which expressly allowed a court to order rotating custody in court determined it is in the child’s best interest. The repeal is clarification of legislature’s intent to allow the parties to choose rotating custody.
- Support Unconnected with Dissolution – Florida Statute 61.10.
Adjudication of Obligation to Support Spouses or Minor Children Unconnected with Dissolution; replaces the term “Parenting Plan”, deletes child custody; child’s primary residence, and visitation. Within the action for support unconnected with divorce the Court shall adjudicate his or her financial obligations to the spouse and child and shall establish the parenting plan for the parties (deleting child’s primary residence, and shall determine the custody and visitation rights).
- Evaluations With Regard to Child Placement
Florida Statutes 61.122 replaces terms “child custody evaluations” with “parenting plan recommendation”, in cases involving dissolution of marriage, domestic violence, or paternity involving relationship of a child and parent and defines the scope of the recommendation to develop a parenting plan recommendation including time-sharing:
The language eliminating the tender years doctrine and the presumption in favor of mothers in obtaining custody is replaced by no presumption for or against the father or mother of the child when creating or modifying the parenting plan.
II. Criteria for Establishing or Modifying Parental Responsibility and Creating, Developing, Approving or Modifying a Parenting Plan, Including a Time Sharing Schedule:
The best interest of the child is still the primary consideration Florida Statute 61.13(3). Determination of the best interest of the child is made by evaluating the following factors affecting the welfare and interest of the minor children, (some of which are new and some of which have remained the same) including but not limited to:
NEW (a) The demonstrated capacity and disposition of each parent to
- facilitate and encourage a close and continuing – parent child relationship;
- honor the time sharing schedule; and
- to be reasonable when changes are required. (emphasis on co-parenting)
Replaced the previous factor “the parent more likely to allow the child frequent and continuing contact with the non-residential parent”, and “the willingness and ability of each parent to facilitate and encourage a close and continuing parent-child relationship between the child and other parent”.
NEW (b) The anticipated divisions of parental responsibilities after the litigation,
including the extent of which parental responsibilities will be delegated to third parties.
NEW (c) The demonstrated capacity and disposition of each parent to determine,
consider and act, upon the needs of the child as opposed to the needs or desires of the parents emphasis on child centeredness.
(This will be the place for evidence as to the child’s developmental needs.)
(d) The length of time the child has lived in a stable, satisfactory environment
and a desirability of maintaining continuity.
NEW (e) The geographic viability of the parenting plan, with special attention paid
to the needs of school-age children and the amount of time to be spent traveling to effectuate the parent plan. This factor does not create a presumption for or against relocation of either parent with a child.
(This changes and replaces the criteria of “the permanence, as a family unit, of the existing or proposed custodial home.”)
(f) The moral fitness of the parents.
(g) The mental and physical health of the parents.
(h) The home, school and community record of the child.
(i) The reasonable preference of the child, if the court deems the child to be
of sufficient intelligence, understanding, and experience to express a preference.
NEW (j) The demonstrated knowledge, capacity, and disposition of each parent to
be informed of the circumstances of the minor child, including, but not limited to:
- The child’s friends, teachers, medical care providers;
- The child’s daily activities; and
- The child’s favorite things.
NEW (k) The demonstrated capacity and disposition of each parent to provide a
consistent routine for the child such as discipline and, daily schedules for homework, meals and bedtime.
NEW (l) The demonstrated capacity of each parent to communicate with and keep
the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the children.
(Note that this replaces the second time “The willingness and ability of each parent to facilitate and encourage a close and continuing parent child relationship between the child and other parent” appeared in the prior statute.)
NEW (m) Evidence of domestic violence, sexual violence, child abuse, child
abandonment, or child neglect, regardless of whether a prior or pending action relating to those issues has been brought.
NEW (n) Evidence that either parent has knowingly provided false information to
the court regarding any prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment or child neglect.
NEW (o) The particular parenting tasks customarily performed by each parent and
the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties.
NEW (p) The demonstrated capacity and disposition of each parent to participate
and be involved in the child’s school and extra-curricular activities.
NEW (q) The demonstrated capacity and disposition of each parent to maintain in
environment of the child which is free from substance abuse.
NEW (r) The capacity and disposition of each parent to protect the child from the
ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child.
(Addresses a recurrent problem – Parents should not discuss their dissolution of marriages case with their children!) No mention of “electronic media” – electronic discovery appearing in statute.
NEW (s) The developmental stages and needs of the child and the demonstrated
capacity and disposition of each parent to meet the child’s development needs.
(Recommended working with child psychologist or have some basic knowledge of development psychology in developing a parent plan). (Understand your child and do what is best for them!)
NEW (t) Any other factor that is relevant to the determination of a specific
parenting plan, including the time sharing schedule.
The focus includes understanding the child’s development needs. Within the same family there may need to be a different parenting plan schedule for children of different ages (see Dr. Deborah Day’s excellent lecture on the developmental needs of children in the recent Floridom Seminar on the new parenting statute).
- Other Related Statutory Changes:
- Parental Relocation – Florida Statute 61.13001
Changes in terminology only replace the terms “primary residential parent” with “parenting plan” or the “time-sharing schedule”; “primary residential parent” and the other parent with “parents”, “visitation” with “time-sharing”, and “child’s principle residence with “child.” Important change is that both parents who have time-sharing rights will have the obligations under the relocation statute, not just the primary residential parent.
- Changes of residence address relates to last order establishing or modifying the “parenting plan” or the “time-sharing” schedule or both.
- Includes “child” … subject of any order granting to a parent or other person “any right to time-sharing, residential care kinship or custody as provided under state law.”
- Modification of Temporary Time-Sharing and Child Support Modification Due to Military Service – Florida Statue 61.13002 –
Changes in terminology replaces “change of child custody” with “time-sharing” and “continue as primary caretaker” with “time-sharing” and new provisions regarding temporary support for service member to the other parent.
- Social Investigation and Recommendations Regarding A Parenting Plan – Florida Statute 61.20 – Changes in terminology replacing “custody” with “parenting plan” and “time-sharing”.
- Child Support Guideline Florida Statute 61.30 –
- “Either parent” replaces the “primary and secondary residential parent” under Florida Statute 61.30(1)(a).
- The time-sharing schedule” remains an adjustment factor adjusting any award of child support for a substantial amount of time by a parent who exercises visitation at least 40% of the overnights of each year, eliminating the term the “non-custodial”.
- Court Order Parenting Plan – risk of violation, bond amendments to Florida Statute 61.45 – includes any proceeding in which the court orders a parenting plan including a time-sharing schedule (now includes domestic violence injunctions) Remedies remain the same.
- Amendments to Domestic Violence Statutes Florida 741.30 – Florida Statute 741.30(k): Replaces terms awarding temporary custody or temporary visitation rights with “temporary parenting plan”, including a “temporary time-sharing schedule” with regard to the minor child or children of the parents which might involve prohibiting or limiting time-sharing or requiring that it be supervised by a third party.
The substantial amendments to the new Parenting/Time Sharing statute gives parents the ability to create a parenting plan consistent with the children’s developmental needs and the family’s lifestyle. While our work involving cases with minor children has now increased, we can tailor our cases to better reflect the unique circumstances of each family and help create a parenting plan appropriate for the family’s future. Hopefully the added flexibility will reduce the threat of “custody” litigation. The court should approve most parenting plans entered into by agreement where the parents and their attorney have considered and applied these criteria.