Who Gets Custody in a Divorce in Florida?

by Heather Frances J.D. Google
Florida judges award custody in the best interests of the child.

Florida judges award custody in the best interests of the child.

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When Florida couples divorce but disagree about custody, a Florida court determines how the spouses will share time with their children. In 2008, Florida redesigned its custody statutes to discourage the perception that one parent has custody while the other parent does not. Now, custody is called “time sharing” in Florida, and courts award time to each parent rather than saying one parent has custody.

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Prerequisites

Before a Florida court can decide custody matters in a divorce, both parents must attend a parenting class to help them guide their children through the changes brought by divorce. In some locations, the parents must attend a class designed specifically for divorcing parents. If parents agree on their parenting arrangements, they must submit that proposed plan to the court for approval.

Joint Legal Custody

Florida judges presume that joint legal custody, called shared parental responsibility, is best for every child. Legal custody is the right to make important decisions in the life of the child, including medical care, education and religious training. In contrast, physical custody, or parenting time, refers to the amount of time the child spends with each parent, so shared parental responsibility only means the parents share the right to make important decisions for the child. It does not control how much time each parent has with the child. The court can award sole legal custody to one parent if the judge finds that joint custody would be harmful for the child.

Best Interests

If parents go to trial to have the judge award custody, the judge makes his decision based on the best interests of the child, and judges use many factors laid out in Florida law to determine a child’s best interests. These factors include the parents' moral fitness and mental and physical health, but most of the factors focus on the importance of continuity for the child. This emphasis can give an edge to the parent who has historically been the caregiver of the child.

Evaluations and Guardians ad Litem

Florida courts can order evaluations of the parents to help the court address the factors to determine the child’s best interests. Courts can also appoint a guardian ad litem -- a specially trained representative -- to act for the child during the custody proceedings. In Florida, a guardian ad litem represents the child but does not act as the child’s attorney. Instead, the guardian ensures the child’s best interests are protected throughout the divorce proceedings.