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Florida Bar Journal

The End of Custody in Florida: Finally Parents Are Just Parents

Family Law

In 2004, the Family Law Section of The Florida Bar undertook the task of investigating the merit of revamping the custody statutes in Florida. The label system of primary and secondary residential parent was causing much costly litigation. After two years and hundreds of hours of volunteer time, the Family Law Section approved what became known as the 2007 Parenting Bill. Unfortunately, the bill did not make it off the ground in 2007, but was revived again and presented in 2008. Thanks to the hard work of Representative Jim Frishe (R-District 54) and Senator Evelyn Lynn (R-District 7), the bill was made Florida law effective October 1, 2008. Numerous changes were made to Ch. 61 of the Florida Statutes, as well as many other chapters, as a result of the nomenclature changes of the revised statute discussed herein. However, the substantive changes to the law are evidenced through the expansion of the factors the court must consider in determining the future of minor children when their parents’ relationship fails.

Was There a Need for a Change?
Prior to the advent of shared parental responsibility, Florida applied the “tender years doctrine.” The archaic belief that only a mother could properly care for the children created a presumption that the mother should receive “custody.”1 In 1982 and again in 1991, amendments to F.S. §61.13 provided that a father was to receive equal consideration irrespective of the age or sex of the child. Notwithstanding these legislative measures to provide both parents with equal footing to be named the primary residential parent, the question really became: “What does being named primary residential parent mean?”

Typically, the primary residential parent receives more of the overnight timesharing than the secondary residential parent. However, nothing statutorily requires the court to award one parent more time than the other.2 Although not actually written in F.S. §§61.13 or 61.30, the primary residential parent is usually the parent who receives child support.3 There is a myth that the primary residential parent is the tie-breaker when there is an impasse as to decisionmaking. Nothing could be farther from the truth, as shared parental responsibility requires joint decisionmaking, and when the parties cannot agree, the dispute is brought to the court for resolution.4 Although the parent with the children in his or her care is certainly able to make day-to-day decisions, neither parent, absent court order, has the superior right to major decisions affecting the best interests of the minor children. Further, both parents are statutorily mandated to have equal access to records and the right to in-person communications with all medical, dental, and educational providers.5

Although previous changes to Ch. 61 provided there were no presumptions in favor of either parent, introducing the labels of “primary residential parent” and “secondary residential parent” triggered litigation. The desire to “win” the designation of primary residential parent often surpassed the “best interests” of the children. The connotation that the “primary parent” was the superior parent fueled much litigation. Having dispelled the myths about the superiority of the “primary” label, why is there a need for labels at all?

This concept of “divorcing” labels for parents from the process of divorce is groundbreaking. Calling parents just that, “parents,” will positively alter litigation in Florida. It will provide attorneys with the tools to diffuse the power struggle over the primary and secondary residential parent and enable more amicable resolution of issues involving children, which are truly in the children’s best interest. passing the new parenting law, Florida has moved into the forefront of a national trend toward mitigating the animosity and litigation in dissolution of marriage cases to preserve the family unit for the children.

What Are the Changes?
First, there are nomenclature changes. Gone are the labels of “primary residential parent” and “secondary residential parent.” The concepts of custody and visitation have also been removed from the new statutory language. The much asked question that logically follows is: “What will they be called?” The simple answer: parents. The nomenclature changes require guidance as to how to govern the parent/child relationship, which triggered the second major change with the addition of the parenting plan. Numerous states have already adopted parenting plans.6 Although not all states utilizing parenting plans statutorily mandate their use, states such as New Mexico and Oregon have taken the lead in requiring the establishment of such plans.7

In Florida, the parenting plan will include a general outline of the overnights and timesharing the children will spend with each parent, including holidays, summer recess from school, and other special occasions. The parenting plan will also outline parental responsibilities of each parent. Depending on the acrimony in the case, the parenting plan may also detail decisionmaking authority and other issues. The parenting plan will account for which parent’s address is the appropriate one to determine school enrollment, as well as resolve issues relating to the children’s involvement in extracurricular activities and other nonschool related activities. The parenting plan will also provide jurisdictional information to comply with the requirements of the Uniform Child Custody Jurisdiction and Enforcement Act and the Hague Convention. Although not statutorily required, the plan may also include parameters for information sharing, timesharing exchanges, transportation, and even resolution of future parenting disputes.8 Most notable of the changes to Ch. 61 are the reformation and expansion of the factors the court will examine in creating a parenting plan. F.S. §61.13, preamendment, included 13 factors. The new statute maintains a few of the previous factors, but removes many and incorporates others into the now 20 expanded factors. Those new factors form the most substantive changes to the law.

So, How Will this Really Change Things?
A timesharing schedule for the children with each parent will now be required. This is a significant modification to how most attorneys currently practice family law. Previously, Ch. 61 did not require the court or the parties to create a specific timesharing schedule. Although a common misconception, under the preamendment statute, there was no presumption that one parent had any specific timesharing schedule, or that one parent received more time than the other with the children. There is no statutory “model timesharing” schedule. Rather, F.S. §61.13 previously provided that the court should order shared parental responsibility. The “primary” and “secondary” residential parent labels actually derived from the language that allowed the court to give one parent ultimate decisionmaking over the primary residence of the children (where they would physically reside).9 This allowed for nonstatutory presumptions to be created, namely that one parent should only visit the child every other Friday through Sunday. Dispelling the concept of the secondary residential parent as a visitor with the children was a primary goal of the amendments to Ch. 61 and will mark a significant change to the dynamics if these disputes arise and how the mother and father will parent children when their relationship has failed.

The next change reflected in the revised Ch. 61 is the removal of the primary and secondary labels. Rather, the parents will be called Mom and Dad, maybe even Mother and Father. Of course, if litigated, the court will be required to examine the statutory factors (largely expanded and discussed below), not to label the parents, but instead to determine the appropriate timesharing for the children with each parent.1011

Will There Still Be Litigation?
The utopian hope is that the removal of labels will significantly decrease litigation. Unfortunately, every family law attorney knows the client who is unwilling to amicably resolve issues without litigation, even issues involving innocent children. Will the new statutory language drastically change the nature of trials involving children’s issues? In all likelihood, no. However, it is likely it will reduce the number of trials necessary. Although the court will be required to establish a parenting plan, the parenting plan is akin to the court entering a detailed final judgment. However, the evidence presented as well as the weight of that evidence may be different as a result of the expanded statutory factors.

The most significant changes to Ch. 61 are the factors the court must examine to determine the parenting plan. Although many of the factors of the preamendment language of §61.13 remain (the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity; the moral fitness of the parents; the mental and physical health of the parents; the home, school, and community record of the child; and the reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference), the remaining factors have been expanded and critical criteria have been added.12

Recognizing that there have been changes in the demographics of the family, and that there are many two-income families with both parents working outside of the home, there was an obvious need to alter what the court examines in determining what is in the children’s best interests. The stereotypical “one parent at home while the other is the breadwinner” family is no longer the norm. Roughly 60 to 80 percent of children are living in homes where one or both parents work full-time.13 As a result, the parent who performs the “primary residential parent” tasks may have shifted, and could be the responsibility of a nonparent. Of course, there are still families where one parent is able to stay at home and serve the stereotypical role of provider of those “primary residential parent” tasks. There are even families where a parent stays at home and does little to contribute to the needs of the children, as the caretaking role may be abdicated to a family or nonfamily member third person (i.e., nanny or grandparent). Expansion of the statutory factors will enable the court to better address the various parameters of family life, given each family’s particular situation and needs.

Under the new statutory scheme, the emphasis is on the ability of the parents to co-parent the children.14 Previously, one of the statutory factors the court was required to consider was the likelihood that parents would foster a relationship with the other parent. This factor has been greatly expanded to include the “capacity of each parent to honor the timesharing schedule and to be reasonable when changes are requested.”15 This statutory revision is significant, as the need for the parents to work with one another to address the needs of the children is paramount to the best interests of the children. The concept of the need for both parents to cooperatively raise their children is further exemplified by the new relief afforded in §61.13, in that both parents will have the ability to seek court relief if either parent fails to abide by the terms of the parenting plan, including the timesharing schedule.16 Previously, this relief was only available to the secondary residential parent if the primary residential parent denied visitation.17 In the past, courts would often be faced with a situation where they could not force a parent to participate in a child’s life, including requiring the parents to use their time-sharing. Arguably, the recently created ability for the court to require timesharing and adherence to a parenting plan will create a situation where parents will ensure they actually concentrate on the best interests of the children and their ability to meet those interests when creating a parenting plan. This is an additional factor that will hopefully lead to the diffusion of the historical custody dispute.

In conjunction with the ability of the parents to work together on timesharing, new factors regarding the anticipated division of responsibilities after the litigation, including those delegated to third parties, are also contained in the statutory reform.18 These factors allow the court to look prospectively at how the parties will function when no longer in an intact family. No factors in the previous version of §61.13 actually discussed the way the family would operate after the entry of the final judgment. Most of the prior statutory factors focused on how things were happening in the family. How the family was able to function in one household significantly changes when there are two households. Responsibilities of each parent shifts and the new factor allows the court to entertain evidence on these very issues. The court can now examine the “particular parenting tasks customarily performed by each parent and the division of responsibilities” before, during, and after the litigation,19 coupled with the ability of each parent to be involved in the activities of the children.20 The expansion of the statutory factors in this area is vital as it now allows a parent who was not historically able to provide day-to-day care for the children due to his or her commitments as a breadwinner to be able to adjust their lives to provide for division of responsibilities involving the children after the divorce.

A bevy of post-judgment issues can arise pertaining to consistency between the households. Previously these issues were generally left for the parents to decide unless serious issues arose with the children. The addition of new factors (k) and (l) provide the court with the ability to address these issues, not just in post-judgment cases, but also in making an initial determination of an appropriate parenting plan.21 Each parent’s ability to provide consistent routines, schedules, and consistent discipline should now be considered.22 More importantly, the court may consider the ability of the parents to communicate about all issues pertaining to the child as well as the willingness of each parent to adopt a unified front on all major issues dealing with the child.23The need for consistency between households is vital to healthy children. Enabling the court to address this issue head-on is a major step in assisting children through the difficult process of the end of their parents’ relationship.

What About Experts?
The expansion of the statutory factors will likely be the primary focus of future litigation concerning children’s issues. With the removal of the term “custody,” other changes were necessary to modify tools previously used in complex custody litigation.

Although not ever statutorily defined, custody evaluations are frequently used tools to provide expert testimony to the trial court to assist the court in making a determination of the children’s best interests. Like the use of social investigations and psychological evaluations, custody evaluations are typically, although not always, conducted by a licensed psychologist. F.S. §61.122 protects psychologists appointed to complete custody evaluations. The American Psychological Association’s (APA) guidelines for child custody evaluations in divorce proceedings serve as standards under which the appointed psychologist conducts the evaluation.24 Since there will no longer be “custody evaluations,” will the requirements of §61.122 still apply? Psychologists will now be asked to provide parenting plan recommendations, arguably similar to what we previously referred to as custody evaluations. As such, psychologists will likely continue to use the APA custody evaluation guidelines when completing parenting plan recommendations. This concept led the legislature to limit those making parenting plan recommendations to psychologists. However, it does not prevent the important and necessary involvement of other mental health practitioners to aid the court in its decisionmaking respecting the best interests of the children.

F.S. §61.20 remains unchanged, but for the nomenclature changes.25 A court may still order a social investigation to study all pertinent details necessary for the court to create a parenting plan. Qualified court staff, clinical social workers, marriage and family therapists, and mental health counselors are still specifically included within §61.20.26 The involvement and necessity of all areas of the mental health practice in the family law setting will be vital, not just for testimony before the court, but also for assisting parents in resolving the issues and avoiding the litigation aspect entirely.

In addition to the social investigation statute remaining unchanged, F.S. §§61.401-61.405 also remain unchanged regarding the appointment and involvement of guardians ad litem in family law cases.27

Thoughts as We Move Forward
As with anything new, there will be growing pains. How the new statute is implemented and interpreted has yet to be seen. Clearly, one question remains unanswered: What premise will the court begin with in determining an appropriate schedule for timesharing? As discussed, there are no presumptions in favor of either parent. The rotating custody statute has now been repealed. Rotating custody was deemed unnecessary given the new statutory amendments. The court is free to determine any appropriate timesharing. But what is the court’s mental starting point? Will the court begin with the premise that both parents start with zero time and build up with the greater weight of evidence? Or perhaps the parents start on an even playing field and the court deviates up or down, or keeps it at equal? On the other hand, the court could start both at 100 percent and, through the factors, subtract from each parent. This determination will be left to the appellate courts.

This is an exciting time for Florida families. All presumptions have been removed and parents in Florida will be empowered to spend less time and money fighting over labels, thus, diffusing the animosity and hopefully allowing Florida parents to create plans for their children that will allow for success after the break up of the parents’ relationship. Finally, parents can just be Mom and Dad.q

1 Ketola v. Ketola, 636 So. 2d 850, 851 (Fla. 1st D.C.A. 1994)

2 Fla. Stat. §61.13 (2007).

3 There may be instances, however, when the noncustodial parent is the recipient of child support. For example, if the secondary residential parent has greater than 40 percent of the overnights, the gross-up method is triggered in calculating child support. Under this method it is possible for the parent with more time to pay child support to the parent with less time, if that parent earns the greater income.

4 Watt v. Watt, 966 So. 2d 455 (Fla. 4th D.C.A. 2007). See Sotnick v. Sotnick, 650 So. 2d 157 (Fla. 3d D.C.A. 1975).

5 Fla. Stat. §61.13(2)(b)3 (2008).

6 The states adopting a parenting plan are as follows: Colorado, DC, Illinois, Kansas, Missouri, Montana, Nebraska, New Mexico, Oregon, Tennessee, Washington, and West Virginia.

7 NM Stat. Ann. Sec. 40-4-9.1; Oregon Stat.§107.102

8 As of the writing of this article, the Supreme Court is fine-tuning a parenting plan form. It is not likely that one form will be suitable for all cases. Parenting plan forms may well emerge for a simplified plan, a complex plan, and a plan for cases with domestic violence and supervision necessary.

9 Fla. Stat. §61.13 (2)(b)2.a (2007).

10 Fla. Stat. §§61.13 (3)(d), (f), (g), (h), and (i) (2007 and 2008).

11 Federal Interagency Forum on Child Statistics, America’s Children in Brief: Key National Indicators of Well-Being, 2008.

12 Id.

13 Id.

14 Of course, issues of domestic violence and need for supervision are also addressed within the statute, but are not the focus of this article. See Fla. Stat. §§61.13 (2)(c) and 61.13 (3) (l), (m), and (n) (2008).

15 Fla. Stat. §61.13 (3)(a) (2008).

16 Fla. Stat. §61.13(4) (2008).

17 Fla. Stat. §61.13(4) (2007).

18 Fla. Stat. §§61.13(b), (o), and (p) (2008).

19 Fla. Stat. §61.13 (o) (2008).

20 Fla. Stat. §61.13 (p) (2008).

21 Fla. Stat. §61.13 (k) (l) (2008).

22 Fla. Stat. §61.13 (k) (2008).

23 Id.

24 American Psychological Association, Guidelines for Child Custody Evaluations in Divorce Proceedings, 49 American Psychologist677-680 (July 1994). See also Fla. Admin. Code R. 64B19-18.007.

25 Fla. Stat. §61.20 (2008).

26 Id.

27 Fla. Stat. §§61.401-61.405 (2008).

Elisha D. Roy is a board certified marital and family law attorney with the firm of Sasser Cestero & Sasser in West Palm Beach. Ms. Roy is on the Young Lawyers Division Board of Governors and the Executive Council of the Family Law Section. Ms. Roy was an active member of the Family Law Section committee that drafted the legislation discussed in this article and was actively involved in the passage of S.B. 2532 in her role as the 2008 Legislative Committee co-chair.

This column is submitted on behalf of the Family Law Section, Scott Rubin, chair, and Susan W. Savard and Laura Davis Smith, editors. Ms. Savard and Ms. Smith acknowledge the assistance of Ingrid Keller in editing this column.

Family Law