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Know the Laws: Florida

UPDATED February 3, 2010

Custody

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.

Definitions
Who Can Get Custody (sole/shared parental responsibility) and Visitation (Time-Sharing)?
Filing for Custody (Parental Responsibility)
How Does the Custody (Parental Responsibility) Process Work?
After an Order in Place

Definitions

back to topWhat is a parenting plan?

A “parenting plan” is a document created to establish the roles of each parent when it comes to making decisions about your child's education, health care, and physical, social, and emotional well-being. The plan must include a description of who will be responsible for any and all forms of health care, school-related matters, and other activities. The plan must also have a time-sharing schedule for the parents and child and describe the methods and technologies that the parents will use to communicate with the child* (such as email, phone, etc.).

In creating the plan, the parents' relationship, any history of domestic violence, and other relevant factors must be taken into consideration. A parenting plan can be developed and agreed to by the parents and approved by the judge. However, the judge might decide to make his/her own parenting plan if s/he does not approve of the plan agreed to by the parents OR if the parents cannot agree on a parenting plan. In these cases, the judge will create the parenting plan after hearing evidence and testimony from both parents. **

* F.S.A § 61.13(2)(b)
** F.S.A § 61.046(13)

back to topWhat does parental responsibility mean? Is it the same thing as custody?

In Florida, the courts have moved away from using the term “custody.” Unlike in the past, neither party will be “awarded custody.” Instead, the courts will assign "parental responsibility" for the children, either shared or sole, and will provide for a timesharing arrangement. The responsibility for raising a child ends upon the child's 18th birthday or upon graduating from high school - by age 19.

back to topWhat is sole parental responsibility (sole custody)?

Sole parental responsibility is when one parent makes decisions regarding the child without input from the other parent.* This includes minor decisions that need to be made on a day-to-day basis (i.e., the child’s bedtime) as well as all major decisions (i.e., the school the child attends).

Sole parental responsibility will be given to one parent if the judge decides that shared parental responsibility would be harmful to the child. In making a decision regarding what is harmful to the child, the court will consider evidence of domestic violence or child abuse, neglect or abandonment. In those cases, the judge will make arrangements for time-sharing that will best protect the child or abused spouse from further harm, which may mean that no time-sharing is ordered.** For additional information on visitation rights for a parent who has committed violence, see Can a parent who committed violence get custody (parental responsibility) or visitation (time-sharing)?

* F.S.A. § 61.046(17)
** F.S.A. § 61.13(2)(c)(2)

back to topWhat is shared parental responsibility (joint custody)?

Shared parental responsibility is when both parents have full parental rights and responsibilities with respect to their child. The parents must talk to each other and jointly make decisions about the child's welfare (including primary residence, education, religion, medical and dental care).* Therefore, in cases where there is domestic violence -- and the abuser has the power and control-- this type of shared parental responsibility likely will not be a good option.

The judge will order shared parental responsibility unless s/he finds that shared parental responsibility would be harmful to the child. Any evidence of domestic violence or child abuse (even if there is no criminal conviction and/or no injunction for protection against domestic violence) will be considered by the judge to be evidence of harm to the child. The court may consider the desires of the parents and may give one parent the ultimate responsibility for particular aspects of the child's welfare or may divide the responsibilities between the parents.**

* F.S.A. § 61.046(16)
** F.S.A. § 61.13(2)(c)(2)

back to topWhat is a time-sharing schedule?

A “time-sharing schedule” is a timetable that must be included in the parenting plan that gives specific times (including overnights and holidays) that the child will spend with each parent. It can be developed and agreed to by the parents and approved by the court. If the parents cannot agree, the schedule will be created by the court after both parents present testimony and evidence.*

* F.S.A § 61.046(22)

back to topShould I start a court case to ask for supervised visitation?

If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, you probably don't have much to lose by asking that the visits be supervised.

However, if there is no current court case, please get legal advice BEFORE you start a court case to ask for supervised visits. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.

In the great majority of cases, supervised visits are only a temporary measure. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the father on a few visits or the visits might be supervised by a relative for a few months -- and if there are no obvious problems, the visits will likely become unsupervised. Oftentimes, the father ends up with more frequent and/ or longer visits than he had before you went into court. He may even end up with joint custody.

In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out if that is best in your situation, please go to Finding a Lawyer to seek out legal advice.

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 that parental responsibility be shared 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 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)

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)

back to topCan grandparents get visitation rights (time-sharing) in court?

No. If one or both parents object, grandparents cannot get visitation in court. The Florida law that allowed judges to give grandparents visitation over the parents’ objection was declared “unconstitutional” by Florida’s highest court.* If you have questions about this, we suggest that you talk to a lawyer in your county – you can find one on our FL Finding a Lawyer page.

*See Belair v. Drew, App. 5 Dist., 776 So.2d 1105 (2001)

back to topI am a member of the child’s extended family (grandparent, sibling, etc.). Can I get temporary custody of the child?

Possibly. If you are an extended family member of the child (a brother, sister, grandparent, aunt, uncle, cousin, etc.), you may file a petition for temporary legal custody of the child if:

1) you have the signed, notarized consent of the child's legal parents OR

2) the child is living with you and you are caring full time for the child in the role of a substitute parent.*

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.**

The temporary custody order may include the right to consent to all necessary and reasonable medical and dental care, to get copies of the child's records, to enroll the child in school and to do any other things that the court finds are necessary for the care of the child, including awarding you child support.***

* F.S.A. §751.02
** F.S.A. § 751.05(3) & (4)
*** F.S.A. § 751.05(5)

back to topIf a child is living with the putative father (a man who believes he is the father but cannot prove it because the mother is absent), can he get temporary custody (parental responsibility) of the child?

Yes. A putative father 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

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, if you are not married to the father, please talk to a lawyer about the pros and cons of filing for custody BEFORE you file. Often times, if there is an informal visitation agreement with the father, you might be better off NOT starting a custody proceeding (especially if he is already paying child support), unless it is your goal for the father to have shared parental responsibility and perhaps to pay more in monthly child support.

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)

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)

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.

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 Injunction for Protection Against Domestic Violence page.

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

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 (parental responsibility)? (Which state has jurisdiction?)

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

How Does the Custody (Parental Responsibility) Process Work?

back to topHow will a judge make a decision about custody (parental responsibility)?

In making a decision about parental responsibility, the judge will have the child’s best interests as the main consideration. These are some factors that the judge will consider in order to determine what is in the child’s best interests:

Whether the parents have shown that they can or will provide the child with a consistent routine involving discipline, bedtime, meals, etc.;
The mental and physical health of the parents;
The home, school and community record of the child;
The willingness and ability of each parent to encourage a close and continuing relationship between the child and the other parent, to honor the time-sharing schedule, to be reasonable when changes are required, and to communicate with and back up the decisions of the other parent;
How parental responsibilities will be divided up after the case is over, including how much of the responsibility will be handled by someone other than the parent(s)(i.e., a nanny)
The ability and willingness of each parent to consider and act upon the child’s needs (as opposed to the parent’s own needs) and to be involved with child’s friends, teachers, extracurricular activities, doctors, etc.
The moral fitness of the parents;
Whether the parents have and will keep the children out of the court case and not bad-mouth the other parent;
How long the child has lived in a stable, satisfactory environment and the benefit to the child of not changing that situation;
How much traveling the child would have to do if spending a lot of time with parents who live far from each other;
Evidence of domestic violence, sexual violence, child abuse, neglect or abandonment or evidence of providing false information to the court about these issues;
Who was the primary care-taker of the child;
The ability of both parents to meet child's development needs;
The reasonable preference of the child, if the judge believes that the child is mature / intelligent enough to form a preference;
Whether the parents have or will provide a home that is free of drug use; and
Any other factor that is relevant.*

You need to be prepared to give as much information as possible to help the court evaluate these and all the other factors regarding the welfare and interests of the child that the court may consider. This means gathering information the child’s father as well as about yourself.

For more information on how evidence of domestic violence can affect who gets parental responsibility and time-sharing, go to Can a parent who committed violence get custody (parental responsibility) or visitation (time-sharing)?

* F.S.A. § 61.13(3)

back to topCan I get financial support for my child in a custody order (parenting plan)?

Yes. A custody (parenting plan) order will contain provisions for child support. In making an award of child support, the court will consider the incomes of the parties and apply the Child Support Guidelines (pursuant to section 61.30 of the Florida Statutes). The expenses of day care and health insurance will be included in the calculation. If a child has special needs, the court may consider increasing the payment based on the child’s needs. To review these guidelines, please see the Florida Statutes page.

back to topIf I have sole or shared parental responsibility, can the other parent see my child's medical and school records?

Most likely, yes. The law says that both parents have the right to access records and information relating to his/her child, including, but not limited to medical, dental and school records. This includes the right to talk to the child's doctor or teacher as well as looking at the written records. The only way to keep the other parent from being able to access those records is if the judge specifically denies the parent that right as part of court order, such as in an injunction for protection against domestic violence* or as part of the parenting plan

Remember: most records will include your child's home address and phone number. Therefore, if your child lives with you and you are trying to keep your address confidential from the abuser, or if there is any other reason that you feel that access to those records would put you or your child in danger, be sure to explain this to the judge and ask that the abuser's rights to access the child's records be taken away. If the judge agrees to include this in your order, you might want to give a copy of the order to your child's teachers and doctors so they know not to give the abuser the records. If the judge does not agree to restrict the abuser's access, you might want to ask the doctors and teachers if you can use a PO Box as the mailing address in the records.

* F.S.A. § 61.13(2)(c)(3)

After an Order in Place

back to topIf the other parent fails to pay the child support that the court ordered, can I refuse to honor his/her visitation (time- sharing) rights?

No, you cannot refuse to honor the other parent's visitation (time-sharing) rights because s/he failed to pay the child support that the court ordered. If you refuse to honor the time sharing in the order, the court can order extra time to the other parent to make up for the lost visitation time. In addition, the court could punish you in the following ways:

ordering you to pay the costs and attorney fees that the father spent to enforce the time sharing schedule,
order you to take a parenting course, order you to perform community service,
modify (change) the parenting plan (which could mean giving sole responsibility to the father or changing the primary residence of the child) if it is in the best interests of the child to do so, and/or
order any other reasonable sanction (punishment) that the judge sees fit.*

* Fla. Stat. § 61.13(4)

back to topWhat can I do if the other parent violates my rights to time-sharing or parental responsibility set forth in the parenting plan?

If the other parent violates your court-ordered rights in your parenting plan, you may file a petition to enforce your existing court order and ask the court to punish the parent for the violation. The court may punish the parent by ordering one of the other remedies listed in the prior question.*

* Fla. Stat. § 61.13(4)

back to topIf a custody order (parenting plan) is already in place, how can I get it changed?

Because custody (parenting plan) is decided in the best interests of the child, an order is never permanent. If you have a custody (parenting plan) order already in place, you may petition the court to make changes to it (modify it). However, to change a custody order, you generally need to prove that there has been a "substantial change in circumstances" since the original custody determination and that it is the child's best interests to change the parenting plan. Furthermore, the substantial change must a material (important) change and something that was not reasonably envisioned at the time of the original custody order.*

If a court in Florida issued the child custody order (parenting plan) that you want to change, you may file the modification petition in the circuit court in the county in which either parent and the child reside or the circuit court in which the original order was issued.** A request for a change in a custody order (parenting plan) can be very complicated. If you want to change a custody order (parenting plan), we recommend that you seek the advice of a lawyer. If you need help in finding a lawyer, you can find one on our FL Finding a Lawyer page.

To find the location of the circuit courts in FL, go to our FL Courthouse Locations page.

* Wade v. Hirschman, 903 So.2d 928 (2005)
** F.S.A. § 61.13(2)(d)

back to topIf I am the primary residential parent under the terms of a custody order (parenting plan) that was issued in Florida, will I be able to move out of the state with my child/children?

Maybe. If there is nothing in the custody order (parenting plan) about relocation, you may need to petition the court to be able to relocate. You may be able to relocate if you are able to obtain a written agreement from other parent and all individuals with visitation rights (time-sharing). Please consult with a lawyer to determine what you need to do to be able to relocate out of state. If you need to petition the court to change the custody order (parenting plan) to provide for relocation, the judge will consider many factors in making his/her determination. The judge will consider whether the quality of your life and the child's will be improved, whether visitation rights (time-sharing) have been allowed and used, whether the cost of transportation for continuing visitation (time-sharing) is affordable, and, as in all custody (parenting plan) decisions, whether the move is in the best interests of the child.*

If you need assistance in finding a lawyer, you can find free and paid lawyers on our FL Finding a Lawyer page. Also, the organizations listed on our FL State and Local Programs page may be able to refer you to a lawyer or another organization that will be able to assist you.

* F.S.A. § 61.13001

back to topAs per the parenting plan, my child lives with me and I want to move to another state. The other parent agrees to the move. How do I change the parenting plan?

If the other parent agrees to the relocation, you can draw up a written, signed agreement with the other parent (and with anyone who has access to or a time-sharing schedule for the child) that includes the following:

allows the child to move with you;
lays out the access or time-sharing schedule for the non-relocating parent and anyone else entitled to access or time-sharing; and
describes, if necessary, any transportation arrangements related to the access or time-sharing.

Then, you can file this in court and ask that it be “ratified” (approved) by the judge without having a hearing on the issue. Although, after you file it, the other parent has 10 days to request a hearing in writing. If no request is made within 10 days, the order will be assumed to be in the child’s best interests and the judge will ratify it so that it becomes an enforceable court order.*

* Fla. Stat. § 61.13001(2)

back to topAs per the parenting plan, my child lives with me and I want to move to another state. The other parent does NOT agree to the move. Can I change the parenting plan?

If there is nothing in the custody order (parenting plan) that allows you to relocate, and the other parent will not agree to sign an agreement to consent to the move, here are the steps you have to take.

First, the law requires that you go to court and file a “Petition to Relocate with a Child” and serve it upon the other parent, and every other person entitled to access to or time-sharing with the child. You should also keep an original copy for yourself.

This “Petition to Relocate with a Child” must include:

1. A description of the location of the intended new residence, including the state, city, and specific physical address, if known.

2. The mailing address of the intended new residence, if not the same as the physical address, if known.

3. The home telephone number of the intended new residence, if known.

4. The date of the intended move or proposed relocation.

5. A detailed statement of the specific reasons for the proposed relocation of the child. If one of the reasons is based upon a job offer which has been out into writing, that written job offer must be attached to the petition.

6. A proposal for the revised post-relocation schedule for access and time-sharing together with a proposal for the post-relocation transportation arrangements necessary for the time-sharing with the child to take place.

7. The following statement, in all capital letters and in the same size type, or larger, as the type-face in the rest of your petition: “A RESPONSE TO THE PETITION OBJECTING TO RELOCATION MUST BE MADE IN WRITING, FILED WITH THE COURT, AND SERVED ON THE PARENT OR OTHER PERSON SEEKING TO RELOCATE WITHIN 20 DAYS AFTER SERVICE OF THIS PETITION TO RELOCATE. IF YOU FAIL TO TIMELY OBJECT TO THE RELOCATION, THE RELOCATION WILL BE ALLOWED, UNLESS IT IS NOT IN THE BEST INTERESTS OF THE CHILD, WITHOUT FURTHER NOTICE AND WITHOUT A HEARING.”*

If the other parent or anyone else entitled to access or time-sharing files a response objecting to the petition to relocate, the judge will hold a hearing or trial where you will have to convince the judge that it is in the child’s best interests to relocate and you will have to get permission from the court before you can relocate. If the other parent does NOT file a response objecting to the petition to relocate, you will still have to get an order from the judge but the judge will generally enter an order that reflects the changes you proposed in the petition. This will be done without a court hearing.**

Note: For information on how to properly prepare and serve this Petition of Intent to Relocate, or how to properly serve an objection to the other parent’s petition to relocate, please contact the courthouse in your county and/or talk to a lawyer who specializes in custody matters in Florida.

* Fla. Stat. § 61.13001(3)(a)
** Fla. Stat. § 61.13001(3)(e)

WomensLaw.org would like to thank Carol Allen for her contribution to these pages and Aliette Hernandez Carolan, Esq. (www.ahcpalaw.com) for her help in reviewing this information.

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