Florida Child Custody FAQs

Tuesday, March 12, 2024

Is a postdivorce custody order about visitation appealable?

According to Florida law, an after the divorce custody order that simply addresses matters of visitation is not appealable as the order is non-final:

Generally, a postdissolution order that simply addresses matters of visitation is not appealable under this rule; the order must grant or terminate visitation rights or otherwise determine a party's right to immediate child custody. See Goslin v. Preisser, 148 So. 3d 869, 870 (Fla. 1st DCA 2014) (“We do not have jurisdiction to review the order by appeal because the order did not determine the parties' timesharing rights.”); Pool v. Bunger, 43 So. 3d 837, 838 (Fla. 1st DCA 2010) (The order is not an appealable nonfinal order under rule 9.130(a)(3)(C)(iii) because, although it addresses matters concerning visitation, the order does not terminate Appellant's visitation rights or otherwise determine “the right to immediate ... child custody”); Hickey v. Burlinson, 33 So. 3d 827, 829 (Fla. 5th DCA 2010) (holding that an order denying a motion to temporarily halt visitation was an appealable non final order because it was an order “regarding visitation”).
Here, the order does not grant or terminate visitation rights nor determine the former husband's right to immediate child custody. Rather, the trial court's rulings are based on interpretation of the current parenting plan and make no changes to the current visitation schedule. Thus, rule 9.130 does not provide this Court jurisdiction to hear the appeal of this nonfinal order. As such, this Court will determine whether the former wife is entitled to relief under a petition for writ of certiorari.

See: Thompson v. Melange, 311 So. 3d 898

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Saturday, March 2, 2024

Are future timeshare plans for a child lawful in Florida?

According to Florida law, the court cannot impose a prospective-based timesharing plan that determines the child’s best interest at some point in the future:

Appellant argues that the court engaged in a prohibited prospective-based analysis when it made its timesharing plan. She relies on Arthur v. Arthur, 54 So.3d 454 (Fla. 2010), and J.P. v. D.P., 196 So.3d 1274 (Fla. 1st DCA 2016), for the proposition that a court is prohibited from determining what the best interests of a child will be in the future. In Arthur, the supreme court addressed whether a court could determine if a future relocation would be in a child's best interests. 54 So.3d at 458–59. The court concluded that a petition for relocation must be determined based on the present best interests of the child, because “a trial court is not equipped with a ‘crystal ball’ that enables it to prophetically determine” whether any changes would occur in the parties' lives in the interim. Id. at 459; see also Horn v. Horn, 225 So.3d 292, 292 (Fla. 1st DCA 2017) (reversing a determination that future relocation would be in the child's best interests).
In J.P., this Court disapproved the use of a prospective-based analysis, where the trial court found that it was in the first-grade child's best interest to be with the father during the school year, but then ruled that the child should move over 300 miles away five years later to live with the mother. 196 So.3d at 1275–78. This Court reversed for several reasons, including the reason that under Arthur, the trial court lacked the ability to determine whether it would be in the child's best interest to relocate five years in the future. Id. at 1277.
Here, in ruling that it was in the best interest of the child for the parties to continue to rotate weekly timesharing until the child entered kindergarten, when it would be in the child's best interest to begin majority timesharing with Appellee, the court engaged in the type of prospective-based analysis prohibited under Arthur and J.P. On remand, the trial court must delete the portion of its order addressing timesharing and custody matters related to future events.

See: Preudhomme v. Preudhomme, 245 So. 3d 989

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Tuesday, February 27, 2024

What qualifies as a substantial change in circumstances?

According to Florida law, a parent becoming sober and improving his/her circumstances in life is not a substantial change in circumstances that can justify a modification of a timesharing plan:

The agreed final judgment was signed on December 19, 2017. The Mother moved to modify it less than twelve months later. At the hearing on her motion, she testified that she has been sober since January 1, 2018. Her sobriety two weeks after the entry of the agreed final judgment is not a substantial change not reasonably contemplated at the time of the original judgment. Jannotta, 959 So. 2d at 374; see also Bell v. Bell, 295 So. 3d 336, 338 (Fla. 1st DCA 2020) (“[W]e have recognized that improved life circumstances do not constitute a substantial change in circumstances sufficient to allow for a modification of timesharing arrangements.”).
The circuit court's order amending the agreed final judgment is reversed. Our reversal is without prejudice to the Mother's right to seek modification attributable to a substantial and material change or other legally available reason. See Chamberlain v. Eisinger, 159 So. 3d 185, 189 (Fla. 4th DCA 2015) (the burden on the parent seeking modification “should not preclude legitimate review in the best interests of the child where there have been significant changes affecting the well being of the child, especially when the change of circumstances has occurred over a substantial period of time.”) (quoting Pedersen v. Pedersen, 752 So. 2d 89, 91 (Fla. 1st DCA 2000)).

See: Daniello v. Settle, 336 So. 3d 1224

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Tuesday, February 20, 2024

Does an unmarried mother have sole custody of her child?

According to Florida law, when a child is born to an unmarried mother, the mother is presumed to have natural guardianship and, therefore, primary residential care and custody of the child. However, the father can establish his rights to the child by filing a petition in the court to establish paternity. Once paternity is established, the father can request a court order for shared parental responsibility, visitation, or primary custody. The court will then determine the custody based on the best interests of the child:

744.301 Natural guardians.—
(1) The parents jointly are the natural guardians of their own children and of their adopted children, during minority, unless the parents’ parental rights have been terminated pursuant to chapter 39. If a child is the subject of any proceeding under chapter 39, the parents may act as natural guardians under this section unless the court division with jurisdiction over guardianship matters finds that it is not in the child’s best interests. If one parent dies, the surviving parent remains the sole natural guardian even if he or she remarries. If the marriage between the parents is dissolved, the natural guardianship belongs to the parent to whom sole parental responsibility has been granted, or if the parents have been granted shared parental responsibility, both continue as natural guardians. If the marriage is dissolved and neither parent is given parental responsibility for the child, neither may act as natural guardian of the child. The mother of a child born out of wedlock and a father who has established paternity under s. 742.011 or s. 742.10 are the natural guardians of the child and are entitled and subject to the rights and responsibilities of parents. If a father has not established paternity under s. 742.011 or s. 742.10(1), the mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child unless the court enters an order stating otherwise.

See: Florida Statute 744.301(1)

And, according to Florida case law:

In this context, however, Father's paternity alone does not grant him child custody. See § 744.301(1), Fla. Stat. (2021). The Florida Legislature has granted "primary residential care and custody" of a child born out of wedlock to the child's mother "unless the court enters an order stating otherwise." Id. § 744.301(1).

See: Nelson v. Mirra - 335 So. 3d 236

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Tuesday, February 13, 2024

How does a court decide if a child continues private school?

According to Florida law, if parents cannot agree on whether a child should continue attending a private school, the court will decide based on the ability of the parent to pay for the private school, whether the expense aligns with the family's established standard of living and whether attending the private school is in the child's best interest:

We conclude that the trial court made appropriate findings consistent with Brennan v. Brennan, 122 So. 3d 923, 926 (Fla. 4th DCA 2013) (holding that the trial court must find: “(1) the parent has the ability to pay for private school, (2) the expense is in accordance with the family's established standard of living, and (3) attendance is in the child's best interest”). These findings are supported by competent substantial evidence.

See: Boulos v. Rubio - 338 So. 3d 1014

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Sunday, February 4, 2024

Must a parent be heard before a child custody change?

According to Florida law, courts must allow parents to present evidence and argument before changing custody:

The trial court could have granted Appellee emergency custody without taking evidence or argument. See Loudermilk v. Loudermilk, 693 So. 2d 666, 667–68 (Fla. 2d DCA 1997) (“Under extraordinary circumstances, a trial court may enter an order granting a motion for temporary custody of a child without affording notice to the opposing party.”). However, an emergency order must be followed by an opportunity to be heard as soon as possible. Id. at 668; see also Wilson v. Roseberry, 669 So. 2d 1152, 1154 (Fla. 5th DCA 1996) (“[T]he trial court should make every reasonable effort to allow both parties to be heard prior to issuing an emergency modification order. If this is not possible, however, an opportunity to be heard should be provided as soon thereafter as possible.”). But the trial court's judgment purports to determine the custody arrangement indefinitely and did not contemplate a follow-up hearing. Instead of an emergency order followed by a prompt hearing, the trial court conducted a partial hearing, did not accept evidence or argument on the required time-sharing factors, and entered a temporary time-sharing order.

See: Reynolds v. Reynolds, 331 So. 3d 832

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Tuesday, January 30, 2024

How does time-sharing work in Florida?

According to Florida law, time-sharing works based on a system where parenting is broken down into two distinct components: parental responsibility (decision-making) and time-sharing (physical visitation with the child based on a parenting plan):

(b) A parenting plan approved by the court must, at a minimum:
1. Describe in adequate detail how the parents will share and be responsible for the daily tasks associated with the upbringing of the child;
2. Include the time-sharing schedule arrangements that specify the time that the minor child will spend with each parent;
3. Designate who will be responsible for:
a. Any and all forms of health care. If the court orders shared parental responsibility over health care decisions, the parenting plan must provide that either parent may consent to mental health treatment for the child.
b. School-related matters, including the address to be used for school-boundary determination and registration.
c. Other activities; and
4. Describe in adequate detail the methods and technologies that the parents will use to communicate with the child.

(c) The court shall determine all matters relating to parenting and time-sharing of each minor child of the parties in accordance with the best interests of the child and in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act, except that modification of a parenting plan and time-sharing schedule requires a showing of a substantial, material, and unanticipated change of circumstances.

See: Florida Statute 61.13 and this analysis by the Florida House of Representatives Staff about Parenting and Time-sharing of Minor Children.

Please note, shared parental responsibility assumes that the parties can come to an agreement on the care of their children. If they cannot, the Judge can decide that their inability to do so is a substantial change in circumstance, requiring modification of the final judgment:

Shared parental responsibility assumes that the parties can come to agreement on the welfare of their children. Where the parties cannot and will not come to agreement, the trial court can determine that such an impasse constitutes a substantial change in circumstance, requiring modification of the final judgment in the best interest of the children. Because competent substantial evidence supports the trial court's determinations in this case, we affirm the final judgment of modification.

See: Watt v. Watt, 966 So. 2d 455

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