The term “custody” was eradicated from our law in Florida. Now, we have two aspects of the child that need to be resolved rather than “custody”; parental responsibility and time-sharing. Parental responsibility means which parent, or both parents, will handle the day-to-day, emergency, and long-term decisions of a child’s life. Who will decide upon the child’s education, health and welfare, religion, extra-curricular activities, and other major decisions that make-up raising a child. In Florida, the best interests of the child is the primary consideration for deciding whether the parents must make the decisions together, whether one parent has ultimate decision-making authority, or whether one parent makes all of the decisions. Under Florida law, there is a presumption is that parental responsibility shall be shared by both parents unless it would be detrimental to the child. To determine whether shared parental responsibility is detrimental to the child, the court will consider evidence of domestic violence, any evidence that the child is or has been in imminent danger of becoming a victim of abuse, abandonment, or neglect, and any other relevant factors. Florida Statute §61.13 sets forth the law a judge must follow when deciding parental responsibility.
If you already have a parenting plan, whether by Final Judgment or agreement of the parties, you may seek to change the parenting plan if the child’s needs require it; this is called modifying parental responsibility. As with parenting plans and time-sharing schedules, a determination of parental responsibility may not be modified without a showing of a substantial and material change in circumstances and a determination that the modification (i.e., either suspending or terminating shared parental responsibility and granting one parent sole parental responsibility or vice-versa) is in the best interests of the child. Determination of the best interests of the child shall be made by evaluating all relevant factors set forth in Florida Statute §61.13 (3).
If you believe that the child’s other parent is acting in a way that is detrimental to the best interests of the child, you should seek a modification of parental responsibility and should contact an experienced family law attorney to assist with preparing and filing the petition for modification of parental responsibility. Conversely, if you believe that your situation and behavior have changed such that you should now have shared parental responsibility, you should also contact an attorney to assist with preparing the petition.
As with parenting plans and time-sharing schedules, unless there is an emergency concerning the child, an evidentiary hearing will be set on the petition for modification of parental responsibility where both parents can present their witnesses to the judge. It is highly recommended that you retain an attorney to prepare for the hearing and represent you at the hearing to ensure that you have the authority to make meaningful decisions for your child and/or the child’s other parent does not have such decision-making authority. We recommend that you try mediating any changes to a parenting plan, before starting costly litigation. It may also be necessary to have the assistance of a psychologist, social investigator or guardian ad litem to help resolve any parenting plan issues or to litigate them if mediation is unsuccessful.