Perhaps the most recognizable, or outwardly apparent, change to custody laws in Florida is the variation in the adversarial terminology once used to describe child custody matters. In example, the harshly oppositional language previously used to define parental rights to a child, such as ‘custodial’ or ‘non-custodial,’ and ‘primary residential’ and ‘secondary residential,’ would often induce, instigate, and/or fuel one parent’s desire to triumph over the other.
In other words, custodial matters in previous years, particularly those extending from divorce, became more of a battle between the parents, as opposed to a battle over protecting the interests of the child(ren) involved. Consequently, as divorce rates continued to steadily incline, so did the adversarial nature of custody cases. In an effort to reduce conflict and equalize parental responsibility, in 2008 Florida made the following revisions to statutory terms pertaining to child custody:
Previous Term(s) |
New Term |
Definition |
“Primary Residential Parent;” or“Secondary Residential Parent”–AND–“Custodial;” or“Non-custodial” |
“Parent” |
No precise definition can be provided for this term that would uniformly apply, given that it can depend on both biological and legal factors. However, in general, the terms refers to the mother or the father. Pursuant to the relocation statute, “Parent” means any person so named by court order or express written agreement who is subject to court enforcement or a person reflected as a parent on a birth certificate and who is entitled to access to or time-sharing with the child. [See Fl. Stat. 61.13001(1)(d)] |
“Joint Custody” |
“Shared Parental Responsibility” |
“Shared parental responsibility” means a court-ordered relationship in which both parents retain full parental rights and responsibilities with respect to their child and in which both parents confer with each other so that major decisions affecting the welfare of the child will be determined jointly. [See, Fl. Stat. 61.046(17)] |
“Sole Custody” |
“Sole Parental Responsibility” |
“Sole parental responsibility” means a court-ordered relationship in which one parent makes decisions regarding the minor child. [See, Fl. Stat. 61.046(18)] |
“Visitation” |
“Time-sharing” |
“Time-sharing schedule” means a timetable that must be included in the parenting plan that specifies the time, including overnights and holidays, that a minor child will spend with each parent. The time-sharing schedule shall be: (a) Developed and agreed to by the parents of a minor child and approved by the court; or (b) Established by the court if the parents cannot agree or if their agreed-upon schedule is not approved by the court.[See, Fl. Stat. 61.046(23)] |
Despite Florida’s replacement of key terms associated with parental disputes over a child, it is still important for parents to know the meaning and application of all terms, whether old or new, and for several reasons. For example, both old and new language is often used interchangeably—not only by the general public, but also by attorneys and judges for purposes of general discussion. In addition, previous terminology, or language that is substantially similar, is still referenced in related state law provisions, as well as the UCCJEA. Also, for parents with custody orders entered prior to October 2008, knowing the variation in terms can be helpful in interpreting or modifying an order, or otherwise assessing your parental and legal rights on a matter that might need court-assisted intervention.
Beyond terminology, the more critical consideration is the intent behind legislative changes——to provide the best solution that will effectively protect the interests of the child(ren) involved. Generally speaking, Florida courts place an emphasis on making the process of raising a child a concerted effort between both parents. Therefore, absent an existing or potential issue over detriment to the child, shared parental responsibility will generally be awarded.
At the same time, parents should also keep in mind that despite the shift towards parental equalization, and resulting focus on the best interests of the child, much leeway has been left in the court’s ability to exercise their discretionary powers. Stated differently, although the law requires that custody determinations be made in a gender-neutral manner, and based upon what is best for the child, this is not to say that gender biases might find their way into a judge’s evaluation of the best interests criterion. In fact, many concerns over judicial authority in custody matters raised in recent years by legal professionals, scholars, as well as lawmakers
Although we hope to see additional reform in the future, for now, custodial matters must be addressed in accordance with the laws currently in place. As such, it is critical to have an attorney on your side who can thoroughly assess your matter, gather all relevant evidence, and most importantly, effectively advocate on your behalf. If you have a question or concern regarding child custody, the experienced and professional Gainesville attorneys of the Law Office of Alba & Straile, PLLC, want to help in obtaining the peace of mind that you and your family deserve.