Who can get custody (sole/shared parental responsibility) of a child?
Generally, both parents can get sole/shared parental responsibility and time-sharing in Florida. 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. There is what’s known as a “rebuttable presumption” that equal time-sharing is in the best interests of the minor child. This means that the judge will assume this is best for the child but a parent can show evidence to the judge to convince him/her that equal timesharing is not in the child’s best interests. Unless the judge determines that it would be harmful to the child, the judge will order shared parental responsibility and will order both parents to spend as much time as possible with the child(ren).1
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?
1 F.S.A. § 61.13(2)(c)(1), (2)(c)(2)
Can a parent who committed violence get custody (parental responsibility) or visitation (time-sharing)?
The judge must order that the parental responsibility for a minor child be shared by both parents unless the judge believes that shared parental responsibility would be harmful (“detrimental”) to the child. In determining what is detrimental to the child, the judge must consider the following factors
- evidence of domestic violence, as defined by law;
- whether either parent reasonably believes that s/he or his/her minor child is or has been in immediate (imminent) danger of becoming a victim of domestic violence, as defined by law or sexual violence, as defined by law by the other parent;
- whether either parent reasonably believes that his/her minor child is or has been in immediate (imminent) danger of becoming a victim of an act of abuse, abandonment, or negelct, as defined by law by the other parent; and
- any other relevant factors.1
In any of the following circumstances, there is what’s known as a “rebuttable presumption” that it would be detrimental for the child to give the abusive parent shared parental responsibility and time-sharing; this means that the judge must assume that it would not be in the child’s best interest, however, the parent can present evidence to try to change the judge’s mind:
- the parent has been convicted of certain domestic violence crimes that are first degree misdemeanors or felonies;
- the parent is in prison due to circumstances that would be grounds for terminating that person’s parental rights as are explained in subsection (d) of FL Statute § 39.806;
- the parent has been convicted of, or had adjudication withheld for, various crimes related to sexual misconduct or kidnapping of a victim who was under 18 or who appeared to be under 18. You can view the list of crimes in subsection (1)(h)(1)(a) of FL Statute § 943.0435.2
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.
1 F.S.A. § 61.13(2)(c)(2)
2 F.S.A. § 61.13(2)(c)(3), (2)(c)(6)
Can 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.1
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.2
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).3
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.4
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.
1 F.S.A. § 752.011(11)
2 F.S.A. § 752.011
3 F.S.A. § 752.011(1),(2)
4 F.S.A. § 752.011(3)
I am a member of the child’s extended family. Can I get temporary or concurrent custody of the child?
If you are an extended family member of the child, there are two types of custody petitions that you may file. The law defines extended family member as any of the following:
- a relative of the child within the third degree by blood or marriage to the parent;
- a step-parent of the child but only if the step-parent is currently married to the parent of the child and is not a party in an ongoing divorce, separate maintenance, domestic violence, or other civil or criminal proceeding involving one or both of the child’s parents as the opposing party or
- someone who is not related to the child by birth, marriage, or adoption but who has an emotionally significant relationship to the child that is similar to a family relationship (“fictive kin.”)1
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.2
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) and a reasonable transition plan that provides for the return of custody back to the parent(s) if it is in the child’s best interests to do so.3
Concurrent custody is when you and the parent(s) both have custody rights to the child for a specific, temporary period of time.4 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.5
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 or you 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).6
Note: Either a temporary or concurrent custody can entitle you to collect child support.7
1 F.S.A. §§ 751.011(2); 39.01(29)
2 F.S.A. § 751.02(1)
3 F.S.A. § 751.05(3)(b) & (4)(b)
4 F.S.A. § 751.011(1)
5 F.S.A § 751.05(3)(a)
6 F.S.A § 751.02(2)
7 F.S.A. § 751.05(5)(b)
If a child is living with the putative father, can he get temporary custody (parental responsibility) of the child?
A “putative father,” which is 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. He can also 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 test1 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.
1 F.S.A. § 742.12