Florida Marriage Separation & Child Visitation Rights

by Beverly Bird

Florida overhauled its laws regarding custody and visitation in 2008, but the alterations were mainly cosmetic. Terminology changed -- visitation is now referred to as "time sharing" -- but many of the underlying issues remain the same. Children can’t live with two parents simultaneously when their parents don’t reside together. Visitation might go by a different name since 2008, but a non-custodial parent is still entitled to time with his child.

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Separation in Florida

Some states allow spouses to file for a decree of legal separation, but Florida's legislation doesn't offer this option. If you and your spouse prefer not to live together anymore, but are not yet ready to divorce, you can create a separation agreement. After you’ve both signed it, it’s a legal contract regarding issues of property and support, enforceable in civil court. However, you should submit your agreement's custody terms to the court in a separate document so the family court can enforce them. You can reiterate the custody terms of your separation agreement in an official parenting plan and submit it to the court for a judge’s review and signature.

Changes to Custody Laws

With the 2008 revisions to Florida law, the state abolished the term “custody” and replaced it with “parenting plan.” After a judge approves and signs your parenting plan, it becomes your custody order. The law no longer awards "primary residential custody” to either parent. The parenting plan spells out what days of each week or month your child spends with each of you. As a practical matter, your child probably will not split her time 50/50 between each of your homes. She will most likely live with one parent a little bit more, even if that parent doesn't officially have primary physical custody.

Visitation Schedules

Florida now calls visitation “time sharing.” If you are creating a visitation schedule as part of your separation agreement, your time sharing arrangement can be almost anything you want it to be, as long as it's reasonable. Florida law stresses that children should spend as much time as possible with both parents. If you create a parenting plan where you only see your child once a month, it might not gain court approval unless extenuating circumstance exist, such as you’re planning to relocate and live some significant distance away. If your relationship with your spouse is contentious, you can create terms in your parenting plan to accommodate this, for example, by having a trusted third party make exchanges for you on days when your child is leaving your home and returning to the home of her other parent. This cuts down on contact between you and opportunities for arguments in front of your child. If your plan for time sharing is sensible and covers all bases, the court is obligated to approve it.

Custody Litigation

If you can’t agree on a parenting plan with your spouse in conjunction with your separation agreement, you’ll have to let a judge decide these issues for you, if you want Florida's family court to have jurisdiction to enforce it or settle disputes. Like most states, Florida allows you to initiate a custody lawsuit separately from divorce litigation. Otherwise, unmarried parents could not have custody orders. If you and your spouse can’t mutually consent to a parenting plan, consider enlisting the help of an attorney. A custody trial involves a great deal more than submitting documents to the court. The judge might order a custody evaluation to guide him in making a decision. In this situation, you might need a professional to help protect your parenting rights.