Overview
In this article, we cover all the legal and practical things parents need to know about child custody and divorce in Florida.
We answer questions such as:
What does custody consist of in Florida?
How does Florida make custody decisions?
What does “best interest of the child” mean?
What goes into a parenting plan?
Is a parenting course required?
What are possible custody outcomes?
At the end of this guide, we provide an FAQ with helpful tips, ranging from information on visitation rights to changes in parenting plans and custody orders.
What does custody consist of in Florida?
The term “custody” consists of two categories in Florida law: legal custody and physical custody (Morse Firm: How Will a Judge Decide Who Gets Child Custody in Florida?). Legal custody is defined as decision-making responsibility, including school choices, medical decisions, etc., which Florida refers to as “parental responsibility.” Physical custody is defined as the “when and where” of child rearing, i.e. if the child stays with one parent during the week and the other on the weekends, who is responsible for aspects of day-to-day child care, etc. Florida refers to physical custody as “timesharing.”
Florida prefers to grant joint custody, in which both parents share aspects of parental responsibility and timesharing (FL § 61.13). Sole custody, or situations where the child lives with one parent most of the time and that parent also becomes the main decision-maker in the child’s life, is exceptionally rare. It is slightly more likely that one parent could be granted sole physical custody, meaning the child lives only with them, but sole legal custody is almost impossible, as Florida believes both parents should take part in making decisions about their child(ren) except in extreme circumstances.
Even in the rare situations where one parent is granted sole physical custody, the court will likely determine some way for the other parent to still be involved in the child’s life. This decision may result in “supervised timesharing,” which is particularly common in cases of abuse, neglect, abandonment, or domestic violence (Golden Key Law Group – Divorce & Child Custody in Florida).
The process of determining custody is referred to as “parenting coordination” and the parameters of custody itself are legally set out in a “parenting plan” (FL §61.125).
What if there is a history of domestic violence?
In cases where there has been a history of domestic violence, the process of parenting coordination will not proceed unless both parents agree, and the court will ensure that agreement has been given “freely and voluntarily” (FL §61.125).
Florida defines domestic violence as assault, battery, sexual assault, stalking, kidnapping, false imprisonment, any aggravated versions of any of the above, or any criminal offense resulting in physical injury or death (FL §741.28). In the process of entering parenting coordination, the definition is also extended to cover “a pattern of behaviors that exert power and control over the other party and that may compromise the other party’s ability to negotiate a fair result,” as well as the threat of domestic violence.
The state defines child abuse as “any willful or threatened act that results in any physical, mental, or sexual abuse, injury, or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired” (FL §39.01). Any accusation, suspicion, or evidence of domestic violence or child abuse is taken seriously in child custody proceedings.
You may be granted temporary custody of a child if you submit a petition for a temporary injunction for protection against domestic violence. In this instance, the court will approve limits on the alleged abuser’s time with the child until the court decides whether there is evidence of domestic violence. These limits may require the alleged abuser’s interactions with the child to be supervised, or they may prohibit the alleged abuser from interacting with the child at all (WomensLaw.org – Legal Information: Florida – Custody).
As part of the temporary injunction process, you can also file a request to keep your address confidential. If you do not want your spouse to know where you and your children live or are staying out of safety concerns, you can require that the court not reveal your address, which would normally be visible to your spouse during divorce proceedings. You can find the related form at the Florida court’s Request for Confidential Filing of Address.
How does Florida make custody decisions?
The guiding philosophy of Florida’s approach to child custody is that each parent should share child-rearing responsibility and the child should spend time with both parents, unless “shared parental responsibility would be detrimental to the child” (FL § 61.13). The court automatically presumes that one parent should have physical custody of a child in the following situations:
The other parent has been convicted of a crime relating to domestic violence, at the misdemeanor level or higher.
The other parent has been convicted of a crime involving sexual contact with a minor.
The location of the other parent is unknown and cannot be determined after searching for two months.
The other parent has engaged in conduct that threatens the “life, safety, well-being, or physical, mental, or emotional health of the child.”
The other parent is in jail.
There is evidence that the other parent has committed domestic violence or child abuse. In child custody cases, there does not need to be a conviction of domestic violence or child abuse (although that would also disbar a parent from having physical custody, see above). Evidence of such behavior is enough for a court to rule that the parent should not have physical custody.
Custody and child support
Even if the court finds that one parent should not have physical custody of a child, that does not mean that parent is no longer obligated to pay any required child support payments. If the court has granted shared custody to both parents, and one parent stops paying their required child support, the other parent is not allowed to stop honoring the agreed-upon custody arrangement. Conversely, if one parent does violate the custody arrangement, the other parent is still obligated to continue paying any required child support.
In Florida, it is possible (though rare) for neither parent to receive custody of a child, if it is in the child’s best interest to be cared for by a third party, probably another relative. In this case, both parents may be required to contribute child support payments to the person with custody.
Parenting coordination
If the parents have already come to an agreement on child custody, they can submit a Parenting Plan with their divorce filing. If the parents do not agree, the court will oversee the parenting coordination process, which typically involves appointing a parenting coordinator.
The parenting coordinator is an “impartial third party appointed by the court or agreed to by the parties whose role is to assist the parties in successfully creating or implementing a parenting plan” (FL §61.125). Parenting coordinators must be certified as a mental health professional, a physician, a family law mediator, or a lawyer.
The court will determine how the parenting coordinator’s fees will be split between the parents. If one parent cannot pay due to their financial circumstances, the court cannot force the parents into the parenting coordination process unless there are public funds available to cover that parent’s portion of the fee, or the other parent agrees to pay the entire cost.
Parents also have the option to settle custody disputes using all the methods available for dealing with other issues two divorcing spouses may disagree on, including mediation and collaborative law. The parenting coordinator is intended specifically to oversee discussions of custody and parenting (Custody XChange – Alternative Ways to Decide Parental Responsibility in FL). Unlike mediators and divorce lawyers, it is not uncommon for parenting coordinators to continue to have relationships with a family even after a divorce is finalized. Parents often bring parenting coordinators in to facilitate discussions as unforeseen issues arise later in the child’s life.
Best interest of the child
Despite Florida’s stated interest in ensuring each parent has the ability to participate in child-rearing, the ultimate factor in determining child custody is the “best interest of the child” (FL § 61.13). The court’s understanding of a child’s best interest is influenced by the following factors:
Each parent’s willingness and capability to facilitate a “close and continuing” relationship with the child.
The likelihood of each parent agreeing to the time-sharing schedule and reacting reasonably to any future schedule changes.
How long the child has lived in a “stable” environment, and if that environment should be maintained, e.g. if it is in the child’s best interests to remain in the marital home.
Geographical considerations, such as how the location of each parent will impact a child’s ability to go to school, and how much time the child will have to spend traveling to spend time with each parent.
The “moral fitness” of each parent.
Each parent’s mental and physical health. There is a specific provision in Florida law stating that a parent may not be denied shared custody of their child on the basis of the parent’s HIV infection, but that a parent who is HIV-positive must follow guidance from the Centers for Disease Control and Prevention to prevent any spread of the virus to the child.
Where the child has previously lived, gone to school, and participated in the community, including extracurricular activities.
Each parent’s demonstrated understanding of the child’s life, including their friends, teachers, health care providers, daily activities, and favorite things.
The likelihood of each parent providing a consistent routine for the child, including homework, meals, bedtime schedules, and discipline.
Each parent’s willingness to communicate with the other and to adopt a unified front on “all major issues” related to parenting.
Any evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect, or any evidence that a parent has lied about any of the above.
The extent to which each parent participated in parenting tasks before the divorce, and how much any third party, such as grandparents or nannies, participated in such tasks as well.
Each parent’s willingness to be involved with the child’s schooling and extracurricular activities.
The likelihood that each parent can provide an environment for the child that is free from substance abuse (more details in “Substance Abuse” subsection).
Each parent’s effort to shield the child from the impacts of the divorce, which can include not talking about the legal components of the divorce proceedings, not sharing legal documents with the child, and not saying anything negative about the other parent to the child (or posting negative things about the other parent somewhere the child can see, such as social media).
The age of the child and how each parent demonstrates their ability to meet the child’s age-specific needs. For example, a baby that is still breastfeeding may need to spend more time with the birthing parent.
Any other relevant factors.
Children may have a say in their own custody decisions if the court considers them to have “sufficient intelligence, understanding, and experience” (FL § 61.13).
How can substance abuse impact custody?
Because the court believes it’s in children’s best interests to grow up in an environment free from substance abuse, the court may order an alcohol/drug evaluation as part of the custody proceedings. Parents may be asked to provide a history of clean drug tests (and potentially ongoing clean tests as well) to prove their ability to provide such an environment (Dewitt Law: Six Costly Mistakes in Timesharing Child Custody Cases in Florida). If one parent suspects the other parent of drug abuse, they can request court-ordered drug tests as well.
If a parent is living in a recovery residence, any custody plan will not require the child to spend any night hours at that residence, unless the residence is specifically intended for pregnant people or families. This provision can also be adjusted based on the parent’s level of recovery and how long they have been sober. However, if any resident of the recovery house is a convicted sex offender, the child will not be required to spend any time there as part of the custody plan.
As part of custody proceedings, the court may order that neither parent is allowed to consume alcohol in front of the child.
Court-ordered social investigations
If parents can’t agree on a parenting plan, the court may order a social investigation “concerning all pertinent details relating to the child and each parent” (FL §61.20). The investigation can only be conducted by qualified court staff, a child-placing agency, a licensed psychologist, a clinical social worker, a marriage and family therapist, or a mental health counselor. If parents are unable to afford the costs of any of the above-listed professionals, the Florida Department of Children and Families will conduct the investigation.
What goes into a parenting plan?
According to the Florida Bar’s page on parenting plan considerations, there are several components to a parenting plan in Florida. Parenting plans need to contain detailed descriptions of how the parents will allocate daily tasks related to the child’s upbringing, including the time-sharing schedule that specifies when the child will spend time with each parent. Parenting plans should delineate who is responsible for health care, including mental health care, and schooling, specifically which address the parents plan to use for the child’s school registration. Finally, parenting plans need to include detailed descriptions of how the parents plan to communicate with the child, including any technology use.
Parenting plan violations
If one parent refuses to comply with the agreed-upon time-sharing schedule, the court may take action against them, unless their lack of compliance is due to a reasonable fear for the child’s safety (FL § 61.45). These actions may include:
Calculating how much time the parent has improperly prevented the child from spending with the other parent and award the other parent the extra time. The best interest of the child will be the primary consideration in the scheduling of any such “makeup” time, as well as convenience for the nonoffending parent and expense to the offending parent.
Ordering the parent to pay any legal costs resulting from getting the court involved in custody schedule enforcement.
Ordering the parent to attend a parenting course or complete community service.
Ordering the parent to be responsible for paying the cost of transporting the child to and from the other parent’s residence if the parents live more than 60 miles away from each other.
Modifying the parenting plan.
Parenting plan violations involving travel
The court can also take preemptive action against a parent if they believe the parent is planning on violating the parenting plan by taking the child out of Florida (FL § 61.45). They can ban a parent from traveling with the child without the written permission of the other parent, or unless they provide the other parent with a travel itinerary, copies of all travel documents, and all contact information for reaching the child during the travel period. The court can also require a parent to communicate custody information to the court system in whatever state they are traveling to. They can require the parent to give up their child’s passport and can inform the U.S. Department of State Passport Services Office that a new passport should not be issued. They can prevent a parent from picking the child up from school or daycare. They may require the parent to post a bond, or to submit money to the court that the parent would forfeit if they violated the court’s orders. If the parent violates the court’s orders and forfeits the bond money, that money can then be used to locate and return the child and pay damages to the other parent. The amount of the bond can vary, depending on the following factors:
Any previous threats or attempts to remove the child from Florida.
A parent’s family and community ties to Florida and to other states.
Any financial reasons motivating a parent to stay in Florida or to relocate.
Any activities that demonstrate the possibility of a parent leaving Florida, such as quitting their job, selling their house or letting their rental lease expire, closing bank accounts, or applying for a passport.
Any history of domestic violence, child abuse, or child neglect.
A parent’s criminal record.
How the parent’s immigration or citizenship status may impact their ability to remain in the United States.
Any mental health disorder that the court believes may increase the risk of child abduction.
In cases where the court believes there’s an extreme risk, the court can decide that a parent is not allowed to see their child without supervision, referred to as “supervised visitation.” The parent will be responsible for paying all costs associated with such supervision.
Can the parenting plan be changed?
Parenting plans can’t be changed unless there has been a “substantial, material, and unanticipated” change in circumstances and proof that modifying the plan will be in the best interest of the child (FL § 61.13).
The relocation of one parent is an example of such a change that would require modification of the parenting plan (FL §61.13001). Florida law defines relocation as a change of address that is at least 50 miles away from the address the parent originally filed with the court. The location change needs to last at least two months and not be associated with education, health care, or a vacation for the child.
There are two ways parents can deal with one parent’s relocation. The two parents can come to an agreement on their own, known as a relocation agreement. The relocation agreement needs to include a summary of the proposed time-sharing schedule as well as descriptions of transportation arrangements.
If the parents can’t come to an agreement, one parent must submit a formal relocation petition and serve it to the other parent, as well as any third party who also has access to time-sharing with the child, if applicable. This petition must include the new address, proposals for time-sharing and transportation, and details on the reasons for the relocation, including a copy of a job offer if the relocation is employment-motivated.
The other parent has 20 days to object to the petition. Any objections must include specific reasons for rejecting the relocation and a statement summarizing how involved the nonrelocating parent is in the child’s life. If the other parent does not file an objection, the relocation will proceed without a court hearing, unless the nonrelocating parent has evidence that the relocation will not be in the best interests of the child. If the nonrelocating parent does file an objection, it is up to the relocating parent to prove why relocation will be in the best interests of the child.
The court will take several factors into account when determining the outcome of a relocation petition, including:
The nature, quality, extent, and duration of the child’s relationship with both of their parents.
Other relationships that may be impacted by the relocation, including siblings, half-siblings, and “other significant persons in the child’s life.”
The age of the child.
The child’s needs, including any special needs.
How the relocation would impact a child’s physical and emotional development, as well as their education.
The financial circumstances of both parents, including the impact of frequent travel on the nonrelocating parent.
The feasibility of preserving the current relationship between the child and the nonrelocating parent.
The likelihood that the relocating parent will comply with the court’s orders.
The child’s preference, considering their age and maturity level.
Any improvements to quality of life the relocation may provide for both the relocating parent and the child, including financial benefits, emotional benefits, and educational opportunities.
The reasons each parent has for seeking or opposing the relocation.
The necessity of the relocation to improve the economic situation of the relocating parent.
How well the relocating parent has fulfilled any obligations to the other parent, including alimony, child support, and marital property/debt obligations.
If the relocation is sought in good faith.
Either parent’s history of substance abuse or domestic violence.
If relocation is approved, the court may order continuing contact with the nonrelocating parent and specify how the parents will divide transportation costs.
Will I need to complete a parenting course?
All parents entering into divorce proceedings must complete Florida’s Parent Education and Family Stabilization Course, which is approximately four hours long and charges a “reasonable fee” (FL § 61.21). If you are the spouse who filed the divorce petition, you need to complete the course within 45 days of submitting the petition. If you are the petition recipient, you need to complete the course within 45 days of receiving the petition.
The two parents do not need to attend the parenting course together at the same time. If there is a history of domestic violence between the parents, the court may explicitly bar one parent from taking the parenting course at the same time as the other parent. Any parent who does not complete the parenting course within the 45-day timeframe may be denied shared custody of their child.
If parents have children with special needs or emotional concerns, they will be required to complete a parenting course specifically designed for those focus areas. Additional parenting courses may be required at the court’s discretion.
Temporary or Emergency Orders
If you are getting a divorce, the judge will likely issue temporary orders allocating parental responsibility. Temporary orders can also address restrictions on one parent leaving the state with a child, or institute temporary protections against domestic violence, such as barring one parent from unsupervised contact with the child.
Either parent can request a temporary order. Temporary orders can also be requested by a guardian ad litem (more information on guardians ad litem in the FAQ section under “What is a guardian ad litem?”). It is up to the judge to grant or deny temporary orders, though both parents can argue their case in a hearing, which will be scheduled more quickly than regular divorce hearings.
If a judge grants a temporary order, the judge will also specify on what date the order expires. Temporary orders can be extended under certain circumstances. If a final custody judgment is settled before the temporary order expires, that judgment will supersede the order.
FAQs for Non-Custodial Parents
As previously mentioned, it is exceptionally rare for Florida to determine that one parent should not have any custody rights. It is more common, but still highly unusual, for a parent to have timesharing restrictions, such as losing the right to have a child live with them. It is almost impossible for a parent to lose their right to participate in making decisions about their child.
What visitation rights do I have?
If you have not been granted physical custody or timesharing rights, you likely still have the right to “visit” with your child. Visitation is different from timesharing in that the child is not considered to be living with you while visiting, and you do not have the responsibilities of a custodial parent during the visit.
Visits may be supervised, depending on the court’s judgment and the reason why you do not have physical custody rights (history of domestic/child abuse, substance use issues, etc.).
What rights to information do I have?
Unless a Florida court has revoked your legal custody rights, which would only happen in an extreme circumstance, you still have rights to all the information concerning your child that the parent with physical custody has. This information can include information regarding education, medical records, and any extracurricular activities.
There is one exception to this situation. If the child’s other parent is seeking protection because of alleged domestic violence on your part, you do not have the right to know where that parent (and consequently, your child) resides.
Can I move to change the custody order and potentially be granted physical custody/timesharing rights?
Yes. As the Florida Divorce Law Group explains in their post, “When Your Child Custody Agreement Can Be Changed,” a custody agreement can be modified to reexamine physical custody and timesharing if one of the parents is moving, or if the child expresses a desire to spend more or less time with one parent. The court will still always assess the child’s maturity level when taking their wishes into account and will make a decision based on the best interests of the child.
Other FAQ’s
Can I make my spouse pay my attorney’s fees after a custody battle?
It is possible that the court will order one parent to pay the other parent’s attorney fees after a prolonged custody process, but it is not guaranteed and should never be relied on (Florida Bar Association: Attorneys’ Fees and Costs).
What is a guardian ad litem?
A guardian ad litem is someone, usually a lawyer, who is appointed by the court to represent the child in the divorce process as an independent investigator acting in the best interest of the child. A guardian ad litem may be appointed for a variety of reasons, but they must be appointed in any case involving allegations of child abuse, abandonment, or neglect.
A guardian ad litem has the power to interview the child and any witnesses, inspect both the child’s and the parents’ medical records, and request the court to order expert medical examinations of the child and/or the parents. The guardian ad litem will submit a report to the court, which may include recommendations and a statement summarizing the child’s wishes.
Can I access my child’s school records even if I don’t have custody?
Yes. According to Florida law, “access to records and information pertaining to a minor child, including, but not limited to, medical, dental, and school records, may not be denied to either parent” (FL § 61.13).
What about medical records?
The same principles apply as in the case of school records, meaning either parent’s access cannot be restricted.
What happens if one parent is in jail?
If one parent is serving a prison term, the other parent is typically granted full physical custody of the child (Blair H. Chan Law: How Incarceration Impacts Child Custody in Florida). This situation may be one of the rare circumstances in which one parent is also granted full legal custody of the child, meaning they have sole decision-making power.
The incarcerated parent may be entitled to visitation rights, though it is up to a judge to decide if prison visitation is in the best interests of the child. The judge may deem visitation to be too traumatic or potentially dangerous to a child’s physical, mental, or emotional health.
How can I get 50/50 split custody?
Florida prefers to give each parent an opportunity to participate in raising their child, but an even 50/50 split, with each parent having 3.5 days a week with the child, is unlikely. It is more likely that the parenting plan will develop a schedule closely approximating a 50/50 split. For example, one parent may have more access to the child during the school year, while the other parent has more access to the child during breaks and vacation periods.
Other Resources
There are some great resources available for Florida parents with questions about child custody. We’ve compiled a few below.
Florida Courts
The Florida court system provides several handy links for understanding and navigating the child custody determination process. All required forms related to child custody and divorce are available for download online at the Florida Family Law Forms page. Florida also has a helpful primer for people who are planning on representing themselves in court, the Family Law General Information for Self-Represented Litigants page, which you should read if you are not planning on hiring a lawyer. Even if you are going to be working with a lawyer, it can still be beneficial for you to look through the guide as it breaks down many of the complicated legal terms you’ll hear in court.
Legal Aid
Legal aid societies provide legal help to people who can’t afford lawyers. They also typically publish useful resources that are accessible to everyone, regardless of income level. One legal aid society in Florida, MyFloridaCounty.com, is specifically focused on cases relating to child custody and child support and can be a great option for anyone who needs financial support in child custody proceedings, or who just wants to learn more about the custody process.