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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.

 

Filing for custody (parental responsibility)

back to topHow do I file for custody (parental responsibility)?

How you file for custody (parental responsibility) will depend upon the circumstances of your case.

If you are married but are involved in a divorce proceeding in Florida, parental responsibility will be determined in the divorce proceeding.  If you are married and have not begun a divorce, you would file in the circuit court where the child lives.

If you are not married, you may file a petition to determine paternity. The court will order DNA testing, enter a parenting plan dealing with parental responsibility and creating a time-sharing arrangement and award child support.  This can be done in the circuit court in the county where the child lives. However, there can be pros and cons to establishing legal paternity - you may want to talk to a lawyer about the pros and cons of filing to establish paternity or filing for custody before you file.

The Florida Courts website has many of the relevant forms that need to be filed on their website.

Also, if you are filing a petition for an injunction for protection against domestic violence, you can ask for temporary custody of your child in your petition. However, any custody order that you get would expire when the injunction expires.

Note: If you want to modify (change) a parenting plan, you may file in the circuit court in the county where either parent and the child reside or in the circuit court in which the original order was entered.*

* F.S.A. § 61.13(2)(d)

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back to topWhere can I file for child custody? (Which state has jurisdiction?)

Generally, you must file in the "home state" of the child.  The "home state" is the state where the child has lived with a parent or a person acting as a parent for at least six consecutive months immediately before the child custody proceeding is started.  If your child is less than six months old, the home state is the state where the child has lived from birth.  This means that if you and your child recently moved to Florida, you generally cannot file for custody in Florida until you and your child have lived here for at least six months.  Until then, Florida courts do not have jurisdiction (power) to make a child custody determination.  For the first 6 months that you are living with the child in Florida, either you or the other parent could start a custody action in the state that your child most recently lived in for at least six months.*  However, if a case is started in the former state where you lived, then you would likely need permission from the judge in that state to move to Florida with the child, which can be difficult to get.

However, there are exceptions to this “home state rule” described above.  In some cases, you can file for custody in Florida when the child and at least one parent have "significant connections" to Florida (aside from physically being in the state) and substantial evidence is available in Florida concerning the child's care, protection, training, and personal relationships.  Usually, however, you can only do this if no other state qualifies as a home state or if the home state has agreed to let Florida have jurisdiction.**  This can be complicated. If you think this applies to your situation, please talk to a lawyer.  Go to our FL Finding a Lawyer page.

* F.S.A. § 61.514(1)(a)
** F.S.A. § 61.514(1)(b)

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back to topDo I need a lawyer to get custody (parental responsibility)?

You do not need a lawyer to file for custody (sole or shared parental responsibility).  However, with the help of a lawyer, it may be easier for you to gather and present the information you will need to convince the judge of your position on what the parenting plan and time sharing schedule should be. Also, if the other parent has a lawyer, it will be more difficult for you to present your case.  For free legal assistance and legal referrals go to our FL Finding a Lawyer page.

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back to topCan I get custody (parental responsibility) of my child if I file for an injunction for protection against domestic violence?

You may ask for temporary custody (parental responsibility) of your child when you file a petition for an injunction for protection against domestic violence in Florida.*  The clerk of court will provide you with a petition form that includes a section to complete if you want the judge to make a temporary parenting plan where you can request that the abuser’s time-sharing be limited, prohibited, or supervised.**  However, parenting plan and time-sharing provisions granted with an injunction expire with that order.*  For more information on how to get an injunction for protection against domestic violence in Florida, please see our Injunctions for Protection Against Domestic Violence page.

* F.S.A. § 741.30(5)(a)(3) & (6)(a)(3)
** F.S.A. § 741.30 (3)(k)

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back to topI fled to Florida with my children to escape domestic violence. Can I get temporary emergency custody of my child in Florida even if another state is the child's "home state"?

Possibly. If you have come to Florida with your child because you, the child, or a sibling of the child is subjected to or threatened with mistreatment or abuse, you can apply for temporary emergency custody in a Florida court.*  If there is already a child custody order from another state or there is an ongoing custody case in another state, any temporary custody order issued by the Florida court would be valid for the period of time that the judge believes that it would take you to return to the original court to try to modify (change) the original order.** 

Getting temporary emergency custody can be difficult to do.  We strongly recommend that you get help from a lawyer if you are considering filing for temporary emergency custody. Go to FL Finding a Lawyer. For information on what state is the "home state," please see Where can I file for child custody? (Which state has jurisdiction?)

* F.S.A. § 61.517(1)
** F.S.A. § 61.517(3)

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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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