Time-Sharing

What is Time-Sharing?

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

Before 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 of the children. However, revisions in the laws in both 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 which of the parents would be the "primary residential parent", or the parent who 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 can make daily decisions regarding the child, neither parent, absent a 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 or order that outlines for the parents how to address and to determine school enrollment, overnights and holiday timesharing with the children, the parental responsibilities of each parent, and any other parenting issues necessary to raise the children. They can also provide for decision-making authority to one parent for some or all of the parental responsibilities unique to the family.

Perhaps the biggest changes to child custody law in October 2008 were the revisions and expansion of the factors the court must consider when formulating or modifying the parenting plan. Florida Statute §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 that seeks to ensure that the children spend valuable time with fit parents. The “best interest of the child” factors that the court will consider in determining time-sharing, and the parenting plan related issues, are the following:

(1)         The ability of the parents to encourage and facilitate a close parent-child relationship, to honor the time-sharing schedule, and be reasonable when changes are required.

(2)              The division of parental responsibilities and delegation to third parties.

(3)              The capacity of each parent to prioritize the needs of the child over their own needs.

(4)              The length of time the child has lived in a stable environment and maintaining that environment.

(5)              The geographic viability of the parenting plan and the amount of time to be spent traveling.

(6)              The moral fitness of the parents.

(7)              The mental and physical health of the parents.

(8)              The home, school, and community record of the child.

(9)      The reasonable preference of the child if the court deems the child to be of sufficient intelligence, experience, and understanding to express of preference.

(10)        The knowledge and capacity of each parent to be informed of the every day life of the child including the child’s friends, medical care providers, activities, and favorite things.

(11)         The capacity of each parent to provide a consistent routine for the child.

(12)         The capacity of the parents to communicate with each other effectively and keep each other informed of issues and activities involving the child.

(13)         Evidence of domestic violence, sexual violence, child abuse, abandonment, or neglect, or any evidence that the child has been or may be in imminent danger of becoming a victim of domestic violence.

(14)      Evidence that either parent knowingly provided false information to the court regarding evidence in section (13).

(15)         The particular parenting tasks performed by each parent and/or third parties.

(16)         The capacity of each parent to be involved in the child’s school and extracurricular activities.

(17)         The capacity of each parent to maintain an environment free for substance abuse.

(18)     The capacity of each parent to protect their child from the ongoing litigation, refraining from talking about or sharing documents pertaining to the litigation.

(19)         The needs of the child and the capacity of each parent to care for those needs,

(20)     Any other factor the court deems relevant to the determination of the parenting plan, including the time-sharing schedule.

In 2023, the Florida Legislature revised the timesharing statute to include a presumption that equal time-sharing is in the best interest of the minor child. To rebut this presumption, a party must prove by a preponderance of evidence that equal time-sharing would in fact not be in the best interest of the child. Unless a time-sharing schedule is agreed to by the parties, the court must evaluate the factors listed above and make specific written findings of fact when creating or modifying a time-sharing schedule.

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

As the law stands presently, "custody" is bifurcated between 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, like traditional "visitation". 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. This presumption can be overcome by providing that shared parental responsibility is not in the best interest of the child; this is established through application of the factors in Florida Statute §61.13.

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