How Is Time-Sharing Determined In A Florida Divorce Case?
Florida Statute 6113 prevails in terms of setting out what factors the courts will consider in determining the best interests of the children. Depending on the circumstances of the specific case at hand, all or some of these factors may be applicable.
The first and foremost factor is the capacity and disposition of each parent to facilitate and encourage a close relationship between the children and the other parent, as well as honor the time-sharing schedule and be flexible when changes are required. The courts do not want children involved in adult decisions, litigation, or divorce proceedings. When one parent disparages the other parent in front of the children, it demonstrates an unwillingness to encourage a close relationship between the children and the other parent, which will be frowned upon by the court.
When there are no issues that would preclude a time-sharing plan and the parents are both “good” parents, then a time-sharing plan must be put into place and should be honored by both parents during the pendency of the proceedings. If one parent decides to stop honoring the time-sharing plan, then the courts will take that into consideration when developing a temporary or permanent plan, and it will usually work against the parent who failed to honor the time-sharing plan.
In order for a parent to change a time-sharing plan, they must have a good reason and will need to file the appropriate relief with the court. It’s also important to be reasonable when changes are required. For example, if a work conference or emergency precludes one parent from honoring the time-sharing plan for a week, then the other parent should be reasonable in accommodating these changes—especially since they too might need to request a temporary change in the schedule due to unanticipated circumstances.
The courts will look at the division of parental responsibilities after litigation and determine whether or not it will be delegated to a third party. For example, if one person is requesting a 50/50 time-sharing plan but is not able to effectuate it for one reason or another, then the courts will take that into consideration in developing the time-sharing plan.
The next factor is the capacity of each parent to determine, consider, and act upon the needs of the children as opposed to their own personal desires. For example, if one parent seeks a 50/50 time-sharing plan and wants their children to be involved in a certain extracurricular activity that doesn’t work for the family, then the courts will consider whether that desire is a result of the parent acting on their own desires, or upon the actual needs of the children.
As another example, if one parent wants their children to receive tutoring in school and the other parent opposes that decision, the court will consider whether that opposition is a result of that parent simply not wanting to give in to the other parent’s request. If so, then they would not be acting upon the needs of the children, but rather upon their own desires.
The amount of time that the children have lived in a stable and satisfactory environment and the desirability of maintaining that living situation may come into play, particularly if one parent is trying to relocate with their children or move to a county where the children do not have any friends.
The next factor is related to the geographic viability of the parenting plan. For instance, many parents relocate within 50 miles of their current residence during or after a separation, yet still want to have a 50/50 time-sharing plan. Obviously, this would not be conducive to children who are in school, and would also require the children to spend a lot of time in a car while traveling to see the parent who has relocated.
The courts also consider the moral, mental, and physical health of the parents. If a parent is unable to effectuate a particular time-sharing plan due to mental or physical illness, then the courts will take that into consideration.
Another factor that will come into play is the school and community records of the children while living with each parent. For example, if the children rarely miss school and always complete their homework while living with one parent but not when living with the other parent, then the court may be more inclined to grant more time to the parent with whom the children have positive school records.
The preference of the children may also be considered, depending on whether they have the intelligence and experience sufficient to express their preference.
The next factor is the demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor children including their friends, teachers, care providers, daily activities, and favorite things. The court can consider whether each parent attends open health and school events, and whether or not they’re communicating with the teachers about school-related issues. If one parent doesn’t know anything about the children, then the courts may move away from a 50/50 time-sharing schedule.
Yet another factor is the demonstrated capacity of each parent to provide discipline and routine for the children, such as by having a schedule for the completion of homework, mealtimes, and bedtime. When parties are separating and children are going back and forth from one home to the other, it’s really important for there to be some level of congruency between the routines with each parent. However, sometimes parents can’t decide on or even discuss a routine.
The next issue is the willingness of each parent to adopt a unified front for all major issues, as well as the capacity of the parents to communicate and keep the other informed of the issues and activities associated with the children. For example, this might mean informing the other parent of an upcoming medical appointment or extracurricular activity. If one parent exhibits an unwillingness to foster a unified front, then the court may consider moving away from a 50/50 time-sharing plan.
Evidence of domestic violence, sexual violence, child abuse, child abandonment, and child neglect on behalf of either parent will be considered by the court. If there are any pending actions against one parent related to these crimes, then the court will determine whether it is in the best interests of the children to spend time with that parent. For example, if a case involves an element of domestic violence, then the court will consider whether domestic violence actually occurred or has just been alleged. If there is an order for an injunction between the parents, then the parents will be disallowed from coming within 500 feet of one another, and this will need to be considered in the determination of the time-sharing plan. In such cases, transfers of the children may need to occur in a public location or within certain parameters so that the order is not violated.
The next issue that the courts will consider is whether either parent has provided false information regarding domestic violence, sexual abuse, child abuse, or child neglect. There are some cases in which one party will claim that an injunction was wrongly filed against them, and that there is evidence that the other party made false claims. If an allegation is found to be false, then that is something which could be used in the divorce or paternity proceedings.
Another factor is the demonstrated capacity and disposition of each parent to maintain an environment free of substance abuse or any other issue that would negate the ability to take care of the children. If it is shown that one parent is abusing a substance, then the courts will consider that in the creation of the time-sharing plan.
In preparation for a hearing or trial, it is important for parents and their attorneys to systematically go through the factors and present favorable evidence related to each finding so that the court can make a proper order.
Is The Same Standard Applied To Visitation Agreements?
In the state of Florida, the term “visitation” is no longer used; instead, the term time-sharing is used.