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Know the Laws: Florida

UPDATED April 12, 2017

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Please consider getting help from a lawyer in your area before proceeding with court action. To find a legal services organization in your area, please go to the FL Finding a Lawyer page.

 

Who can get custody (sole/shared parental responsibility) and visitation (time-sharing)

back to topWho can get custody (sole/shared parental responsibility) of a child?

Generally, both parents can get sole/shared parental responsibility and time-sharing in Florida.  The court will not show a preference for the mother over the father.  It is the public policy in Florida to assure that children have frequent and continuing contact with both parents and that both parents should be encouraged to share the rights and responsibilities and joys of child rearing.  Unless the court determines that it would be harmful to the child, the court will order shared parental responsibility and will order both parents to spend as much time as possible with the child(ren).* 

Note:  A member of the child's extended family may be granted temporary or concurrent custody of a child but only under limited circumstances. For more information, see I am a member of the child’s extended family (grandparent, sibling, etc.). Can I get temporary custody of the child?

* F.S.A. § 61.13(2)(c)(1)

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back to topCan a parent who committed violence get custody (parental responsibility) or visitation (time-sharing)?

Sometimes. It depends on the circumstances of the case. If the parent has been convicted (found guilty in criminal court) of certain domestic violence crimes that are either first degree misdemeanors or felonies or is in prison due to circumstances that are grounds for terminating that person's parental rights, the judge must assume that it would not be in the child’s best interest to give parental responsibility and time-sharing to that parent. However, that parent has the right to present evidence to try to change the judge’s mind and prove that it would not be harmful to the child to have parental responsibility or time-sharing.

Even if the parent has not been convicted of any offense of domestic violence or child abuse and even if you don’t have an injunction for protection against domestic violence, the judge will still consider any evidence of domestic violence or child abuse when deciding what type of parental responsibility or time-sharing the abuser will get. Evidence of abuse is viewed as evidence of harm to the child.*

If the judge decides to order visitation (time-sharing) by the parent who committed violence, you can ask that the visitation be supervised or very limited. The judge may do so if s/he believes it is necessary to protect your safety and the child’s safety. However, if the judge does not believe that you or your child remains at risk from the abuser, the judge may order unsupervised time-sharing.

If you feel there is a continuing risk of violence to you or your child, or if new incidents happen during the visitation, you may be able to apply for an injunction for protection against domestic violence to help keep you safe.

* F.S.A. § 61.13(2)(c)(2)

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back to topCan grandparents get visitation rights in court?

A grandparent can file a petition in court for visitation of a minor grandchild in the county where the child lives if certain conditions are met.* 

Step 1. In order to file, one of the following must be true:

  • both parents are dead, missing, or in a persistent vegetative state; or
  • one parent is dead, missing, or in a persistent vegetative state and the other parent has been convicted of a felony or a crime of violence in which s/he showed behavior that poses a substantial threat of harm to the child's health or welfare.**  

Step 2.  Then, the court would hold a preliminary hearing to determine whether the grandparent has set out facts that show parental unfitness or significant harm to the child.  If the judge believes that there is no indication of either one, the judge will dismiss the petition and the grandparent can be ordered to pay the other party's reasonable attorney fees and costs.  If the grandparent has shown enough evidence to the judge that a parent is unfit or that there is significant harm to the child, the judge can appoint a guardian ad litem for the child and will refer the case for mediation or hold a final hearing (if mediation doesn't work).*** 

Step 3. If the parties cannot come to an agreement through mediation and the judge holds a final hearing to decide the issue, the judge can grant reasonable visitation to the grandparent if all of the following are true:

  • there is clear and convincing evidence that the a parent is unfit or that there is significant harm to the child; 
  • visitation will not significantly harm the parent-child relationship; and
  • the visitation is in the best interest of the child.****  

To read about the factors that the judge will consider when deciding if the visitation is in the child's best interests, go to our FL Statutes page to read subsection (4) of the law. 

To read about the factors that the judge will consider when deciding if the visitation would significantly harm the parent-child relationship, go to our FL Statutes page to read subsection (5) of the law. 

* F.S.A. § 752.011(11)
** F.S.A. § 752.011
*** F.S.A. § 752.011(1),(2)
**** F.S.A. § 752.011(3)

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back to topI am a member of the child’s extended family. Can I get temporary or concurrent custody of the child?

Possibly.  If you are an extended family member of the child (a brother, sister, grandparent, aunt, uncle, cousin, step-parent, etc.), there are two types of custody petitions that you may file. 

Temporary custody is when you have legal custody over the child for a specific, period of time and during that time, you (not the parents) have decision-making power for the child (i.e., you have the right to consent to all necessary medical and dental care, to get copies of the child's records, to enroll the child in school, etc).  You may file a petition for temporary legal custody of the child if:

  • you have the signed, notarized consent of the child's legal parents; or
  • the child is living with you and you are caring full time for the child in the role of a substitute parent.*

Temporary custody can granted over a parent's objection.  If one or both of the parents object to you having temporary custody, you have to prove that the child's parents are unfit to provide the proper care and control of the child because the parent has abused, abandoned, or neglected the child.  If you do get temporary custody, the court can order visitation rights to the parent(s) if it is in the child’s best interests to do so.*1

Concurrent custody is when you and the parent(s) both have custody rights to the child for a specific, temporary period of time.*2  Concurrent custody does not eliminate or lessen the custodial rights of the child's parent(s) and they can get physical custody of the child back at any time.  Concurrent custody can only be granted when both parents agree to it - if one parent objects, you cannot get concurrent custody.*3

You may file a petition for concurrent custody of the child if:

  • you have the signed, notarized consent of the child's legal parents; or
  • the child is living with you and you are caring full time for the child in the role of a substitute parent and both of the following are true:
    • you currently have physical custody of the child and have had physical custody for at least 10 days in any 30-day period within the last 12 months; and
    • you do not have signed, written documentation from a parent that would allow you to do all of the things necessary to care for the child instead of the parent (since that would be what you would get with temporary legal custody, not concurrent custody).*4

Note: Either a temporary or concurrent custody can entitle you to collect child support.*5

* F.S.A. § 751.02(1)
*1 F.S.A. § 751.05(3)(b) & (4)(b)
*2 F.S.A. §751.011(1)
*3 F.S.A § 751.05(3)(a)
*4 F.S.A § 751.02(2)
*5 F.S.A. § 751.05(5)(b)

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back to topIf a child is living with the putative father, can he get temporary custody (parental responsibility) of the child?

Yes.  A putative father (a man who believes he is the father but cannot prove it because the mother is absent) who is caring for a child whom he believes is his, may file a petition to determine paternity and he can ask the judge to issue an order that establishes a temporary legal custody relationship between him and the child during the proceeding. The court will likely order a DNA test* and then enter an order creating a legal relationship between the father and the child, award child support, if applicable, and time-sharing for the mother, if applicable.

* F.S.A. § 742.12

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WomensLaw.org would like to thank Aliette Hernandez Carolan, Esq. for her help in reviewing this information.

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