FLORIDA DIVORCE TRENDS ON TIME-SHARING AND SUPPORT

"Divorce is the one human tragedy that reduces everything to cash."

-Rita Mae Brown

I am writing this post because I so often overhear the following discussed by those involved in a divorce, or those thinking about filing for divorce.

                “I am getting divorced.”

“Wow, I am shocked and sorry to hear that. I always thought that you were so happy.”

“What is going to happen with the children?”

“I’m not worried because my friends all tell me that, in Florida, the judges are in favor of giving custody to their mom.”

“If my husband wants, he can ask for visitation, but I am sure he is not going to get much because he hardly knows how to take care of the children.”

 

Simply put, this is not an accurate statement. Florida no longer has the concept of custody or visitation. Now, the allocation of time spent with the children is called “time-sharing.” Theoretically, this was supposed to take out the negative connotations associated with “custody” and “visitation” in divorce cases, but in reality----as many family law lawyers will agree---it is really only a change in semantics and has not reduced parents from fighting about anything.

 

What has happened since the change to the concept of time-sharing, is that parents now bitterly fight about how much support a parent has to pay, and how that amount is impacted by the amount of time-sharing they get with their children. In fact, it is this writer’s opinion, that the time-sharing legislative “idea” has caused parents, who would ordinarily agree to a reasonable time to spend with their kids, to now aggressively fight for as much time-sharing as they can (regardless of whether this is good for their children or even feasible), so that they can try to pay less child support.

 
Different name, but the same old result.
 
With regard to the mother’s claim above that a judge will give her request for time-sharing more weight; at one time, Florida applied what was known as the “tender years doctrine.” This was based on an old belief that only a mother could properly care for the children.  This doctrine no longer exists in Florida.
 

Currently the way the law is applied, is that the court “shall” order that parental responsibility for a minor child be shared by both parents, unless the court finds that shared parental responsibility would be detrimental to the child.

At Section 61.13 of the Florida Statutes, the legislature has attempted to explain its application of time-sharing in the following manner:

“It is the public policy of this state that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys, of childrearing. There is no presumption for or against the father or mother of the child or for or against any specific time-sharing schedule when creating or modifying the parenting plan of the child.”

 

The standard of how time-sharing is allocated is dependent on the “best interests of the child.” The determination of what the best interest of the child is consists of the court evaluating all of the factors affecting the welfare and interests of a child, including, but not limited to:

(a) The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required.

(b) The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.

(c) The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent.

(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.

(e) The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of either parent with a child.

(f) The moral fitness of the parents.

(g) The mental and physical health of the parents.

(h) The home, school, and community record of the child.

(i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.

(j) The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to, the child's friends, teachers, medical care providers, daily activities, and favorite things.

(k) The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, and daily schedules for homework, meals, and bedtime.

(l) The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child.

(m) Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect, regardless of whether a prior or pending action relating to those issues has been brought. If the court accepts evidence of prior or pending actions regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect, the court must specifically acknowledge  in writing that such evidence was considered when evaluating the best interests of the child.

(n) Evidence that either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect.

(o) The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties.

(p) The demonstrated capacity and disposition of each parent to participate and be involved in the child's school and extracurricular activities.

(q) The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse.

(r) The capacity and disposition of each parent to protect the child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child.

(s) The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child's developmental needs.

(t) Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.

 

As outlined above, a mother involved in a divorce, or thinking about a divorce should not assume that a judge is going to give her preferential treatment when the determination of time-sharing or sole parental responsibility is decided.  The standard is “What is the best interest of the child?” It is each spouse’s equal burden to provide sufficient evidence to the court that they should be the person with the most time-sharing and whether they should have sole parental responsibility.

Withholding Time-Sharing or Support

Another conversation that I often hear goes as follows:

 

       “My husband has not paid me child support or alimony in months.”

       “So, what are you going to do about it?” “That seems really unfair!”

       “I’m going to teach that deadbeat  a lesson!”

        “He is not going to spend one minute with the children until he pays up.”

 

This is another mistake that persons often make. Although it feels unfair on a moral level, a parent who is not receiving support cannot withhold time-sharing from a non-paying spouse. The parent withholding time-sharing could be sanctioned by the court. In fact, if a divorce is pending, a court can consider withholding of time-sharing against the party who withholds it. The correct, albeit difficult, step to take is to immediately seek relief from the court to receive support, but do not withhold time-sharing.

 

The rationale behind this approach to time-sharing is that Florida law is focused on what is the best interest of the child, not what either parent claims to deserve. It is in the best interest of the child, according to the Florida legislature, that children spend time with both their parents---even if one of the parents is not cooperating with financial assistance.

Florida law is very clear about this issue:
 

“When a parent who is ordered to pay child support or alimony fails to pay child support or alimony, the parent who should have received the child support or alimony may not refuse to honor the time-sharing schedule presently in effect between the parents.”

On the other side of the argument, the following statements are often made:

       “I am up to date on all my support payments, and my wife is not letting me see the kids.”

      “She thinks the kids belong to her, and always has an excuse to keep me from seeing them.”

       “I am going to show her. I am not going to pay her a dime, besides she is probably just using all the money I pay her to pay for her own things, and not to take care of the children.”

 

Again, slam your brakes before you withhold your support. If what is described above is happening to you, and you are being denied time-sharing, the correct course of action is to again immediately seek relief from the court.  Withholding the payment of any court ordered support is not allowed by the Florida statutes as stated below:

“When a parent refuses to honor the other parent's rights under the time-sharing schedule, the parent whose time-sharing rights were violated shall continue to pay any ordered child support or alimony.”

Remember, that the child’s best interest is paramount regardless of how uncooperative a parent may be with time-sharing.  The way these matters should be handled is to immediately request relief from the court. Failure to pay child support, or withholding of time-sharing, are all acts that use a child as a weapon against the other parent, and commonly result in sanctions by the court.

It is important to remember that anger and bitterness do not override the best interest of a child in a divorce case. Failing to pay child support or withholding time-sharing are considered a very serious violation of a child’s rights.

The information herein is only a basic summary of Florida law.  I urge all readers involved in divorce proceedings to immediately retain a lawyer to discuss all legal issues pertinent to the case, as well as the obligations pursuant to Section 61.13 of the Florida Statutes.

-Leonardo G. Renaud