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Top Eleven Things you didn’t know about Child Custody Cases

#1 – The Court can order electronic communication with child

The court can order electronic communication between a parent and child, including those via telephone, text message/chat, email, webcam, and video-conferencing, upon considering (1) the child’s best interests; (2) the availability, accessibility, and affordability of communication equipment/technology; (3) each parent’s history of substance abuse or domestic violence; and (4) any other material fact. If it is in the child’s best interest, a rebuttable presumption regarding telephone contact is created, which means that at a very minimum the court will order telephone communications, unless the presumption is rebutted. The court shall allocate expenses for such communications, and may set safeguards or guidelines for communications. Each parent shall furnish the other with access information necessary to facilitate communication. However, electronic communication shall not be used to supplement face-to-face contact with the child. See, Fla. Stat. §61.13003, see also §61.046(5).

#2 – The Court can order make-up time-sharing when a parent refuses to honor time-sharing

Neither parent may avoid their obligations and duties pursuant to valid court order. In other words if one parent fails to pay child support, the other parent must still honor the time-sharing schedule—and—if one parent refuses to honor time-sharing, the other must still pay support. Failure to honor time sharing can result in the court ordering make-up sharing to compensate the non-offending parent for time-sharing missed. In addition, the court may order the offending to bear the costs, attorney’s fees, and in cases where the parent and child reside more than 60 miles from the other parent, require that party pay expenses associated with exercising make-up timesharing. For more on this topic, see ‘Parental Consequences in Refusing to Honor Time-Sharing.’

#3 – The Court will order shared parental responsibility unless it would be detrimental to the child

As set forth in Florida Statute §61.13(2)(a)(c)(1), it is public policy that ‘each minor child has frequent and continuing contact with both parents…and to encourage that parents share the rights and responsibilities, and joys, of childrearing.’ Consequently, unless a parent presents competent, substantial, and credible evidence showing that time-sharing would be detrimental to the child, the court shall order that parental responsibility be shared by both parents. In some cases a rebuttablepresumption of unfitness, or detriment to the child, may exist (see #4), which if not rebutted precludes the court from awarding that parent physical or legal custody.

#4 – Certain criminal convictions create a rebuttable presumption of detriment

In child custody proceedings, §61.13(2)(a)(c)(2) provides that a rebuttable presumption arises in two scenarios:

(1) A Parent was convicted of a misdemeanor of 1st degree or higher involving Domestic (i.e. offenses resulting in physical injury or death of one family/household member by another family/household member)


(2) Parental Incarceration meets criteria for Termination of Parental Rights (i.e. period of incarceration represents significant portion of child’s minority; incarcerated parent is career offender)

As a consequence of failing to rebut this presumption, after being advised by the court, the convicted parent may not be granted shared parental responsibility, including time-sharing with the child. However, the convicted parent is not relieved of any obligation to provide financial support. Further, the court shall consider evidence of domestic violence or child abuse as evidence of detriment, regardless of a conviction (or injunction for protection).

#5 – The Court may order child support even if time-sharing is equal

An order for equal time-sharing for a minor child does not preclude the court from entering an order for child support of the child, pursuant to Florida Statute §61.13(4)(d)(5). Depending on the circumstances of parties, and nature of the case, a parent may still be required to pay support even if time-sharing is equal, so long as such orders for support are equitable (i.e. considers financial factors of each parent), and are in accordance with child support guidelines, as set forth in §61.30. This provision serves as an ideal example of the discretionary authority permitted to judges in child-related proceedings in Florida.

#6 – The Court may order a parent to pay attorney’s fees, costs and other expenses

While the court must first consider the financial resources of a parent, there are circumstance in which the court may order a party to pay certain expenses, including:

  • Attorney’s fees,
  • Suit money, and
  • Other costs of maintaining/defending a family law/child-related proceeding

Grounds for such awards include, but are not limited to:

  • Where, a parent must commence and/or maintain an action, when, without good cause, the other parent fails to abide by order of court
  • Where an action for enforcement, modification, or other court relief is brought without justification

In addition, the court can order:

  • Temporary fees and costs when necessary to prosecute or defend an action
  • Awards to be paid directly to the attorney
  • Other special orders as necessary

#7 – A parent under military service order may designate other persons to exercise time-sharing

Florida Statute §61.13002(2) provides that, “[i]f a parent is activated, deployed, or temporarily assigned to military service on orders in excess of 90 days and the parent’s ability to comply with time-sharing is materially affected as a result, the parent may designate a person or persons to exercise time-sharing with the child on the parent’s behalf. Time-sharing may only be designated to the following persons:

  • Family members
  • Stepparents
  • Relatives of the child by marriage

The designation must be made in writing and provided to the other parent at least 10 working days before the court-ordered period of time-sharing begins. The other parent may object to the designations only on the grounds that the proposed designation is not in the best interests of the child. Parents who cannot agree on time-sharing delegation may request an expedited hearing on the matter.

#8 – The Court may order a Social Investigation

In any action where the parenting plan is at issue (i.e. in dispute), the court may order a social investigation and study concerning all pertinent details relating to the child and each parent, as set forth by Florida Statute §61.20. Court-ordered social investigations and studies may be conducted by:

  • Qualified Staff of the Court
  • Licensed Marriage and Family Therapist
  • Licensed Social Worker
  • Licensed Psychologist
  • Licensed Child Placing Agency
  • Licensed Mental Health Counselor

Parents to a proceeding where a social investigation is ordered by the court, shall bear the costs of the investigation and study, with the exception of persons deemed to be indigent. If a parent has been declared indigent and the court does not have qualified staff to perform the investigation, the court may request that the Department of Children and Families conduct the study.

#9 – The court may require the parents to complete a Parenting Course

Pursuant to §61.21(4) of Florida Statutes, ALL parties to a (1) dissolution of marriage (divorce); or (2) paternity action involving issues of parental responsibility, shall be required to complete the Parent Education and Family Stabilization Course. For good cause, a party may be excused from attending a parenting course, or from completing the course with the required time. Parents must participate in this course prior to final judgment, and failure to do so can result in a parent being:

  • Held in contempt
  • Denied shared parental responsibility or time-sharing
  • Sanctioned as the court deems appropriate

#10 – The Court May Appoint a Guardian ad Litem

If the court finds it is in the best interest of the child, the court may appoint a guardian ad litem. A guardian ad litem serves the interests of the child, as opposed to the interests of the parents. In other words, such person acts as next friend of the child, in an investigator or evaluator capacity, but not as attorney or advocate. The court may appoint a guardian ad litem in actions involving: (1) Dissolution of marriage; and/or (2) Creation, approval, modification of a parenting plan. Further, the court must appoint a guardian ad litem in actions involving child abuse, abandonment, or neglect, where such allegations have been verified by the court and determined to be well-founded. See, Fla. Stat. §61.401; see also §§61.401-61.404.

#11 – The Court may Impose Restrictions or Require a Party to Post Security or Bond

In proceedings involving the approval of parenting plans and time-sharing schedules, including modifications, the court may impose certain restrictions, limitations, and obligations, pursuant to Florida Statutes §61.45, if:

  • There is substantial competent evidence that there is a risk that one party may violate the court’s parenting plan, by: (1) removing a child from this state or county; or (2) concealing the whereabouts of a child; and/or
  • The parties stipulate (agree) to such restrictions/obligations; and/or
  • Another individual or entity having a right under state law motions the court (i.e. guardian ad litem; other person entitled to access to or time-sharing with child); and/or
  • The court finds evidence that establishes credible risk of removal

Potential restrictions, limitations and/or obligations that the court may impose include, but are not limited to:

  • Require written notarized permission of both parents or further order of the court to remove a child the state or country; and/or
  • Require a parent to surrender the passport of the child; and/or
  • Require that a party post bond or other security in an amount sufficient to serve as a financial deterrent to abduction.

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