CHILD CUSTODY

 WHAT ARE THE LAWS REGARDING CHILD CUSTODY IN FLORIDA?

Florida does not recognize the term “child custody” per se.  In Florida, it is referred to as Joint/Shared Parental Responsibility with one parent being the primary custodial parent.  Sometimes there is one primary custodial parent and other times there is shared custodial responsibility with both parties sharing the time with the children equally. In making this determination, the courts look to the best interests of the child. 

PARENTAL RESPONSIBILITY- Florida Statutes § 61.13 (2) covers Parental Responsibility.

• Shared Parental Responsibility- Florida law states that after a divorce both parents retain parental rights over their child unless the court determines that it is not in the child’s best interests.  Parents must discuss the major decisions in a child’s life and make joint decisions on those choices. 
• Sole Parental Responsibility- a court can award one spouse sole parental responsibility where shared parental responsibility would be detrimental to the child. There is a presumption that shared parental responsibility would be detrimental to the child if a parent has been convicted of a third-degree felony or higher involving domestic violence. Florida Statutes § 61.13(2)(b)(2).  A court must also consider any instances of domestic violence or child abuse.
• Primary Residential Parent- Florida Statutes § 61.13(3) in making this determination a court looks at both parents to determine who should be designated the primary residential parent. Specifically the judge looks at

1. who will to allow the non-residential parent regular visitation and contact

2. emotional ties between the parents and the child

3. the ability of a parent to provide for the child, i.e food or medical needs

4. the amount of time the child has lived in a stable place

5. the permanence of the existing or proposed home

6.  the mental and physical health of the parents

7. the home and school records of the child

8. the preference of the child as long as it is reasonable, although this is not the determining factor

9. evidence of child abuse or domestic violence

10. or any false information one parent has provided to the court

• Rotating Custody- Florida Statutes § 61.121 A court may award rotating custody whereby a child lives with both parents for an equal period of time.  Judges tend to disfavor this type of custody because it can be disruptive to the child’s upbringing.
• How can a judge determine what is in the best interest of the child?

1. Guardian ad litem­-  a guardian ad litem is either an attorney or a certified person who acts as an independent advocate for the child.  He or she can investigate and make various recommendations to the court

2. Home Study-Florida Statues § 61.20- A judge may also order a home study.  A home study is a detailed investigation that addresses a signification number of issues relating to the child.  It is normally conducted by either a psychologist, licensed social worker, or other qualified individual.

VISITATION is another issue that falls under parental responsibility.  Each parent has a constitutional right to a relationship with their child.  However, grandparents have no visitation rights.

• One parent can not deny visitation to the other because of overdue child support- Florida Statutes § 61.13(4)

WHAT HAPPENS IF A SPOUSE WANTS TO RELOCATE TO ANOTHER STATE?

• one parent can not simply purchase a home in another state or county and move with the child
• that parent must receive the court’s permission first or risk sanctions

WHAT IF THE NONRESIDENTIAL PARENT WANTS CUSTODY?

• MODIFICATION OF CUSTODY- a parent who want to modify custody bears a huge burden and must demonstrate:

1. a substantial and material change in circumstances since the final order of custody

2. will the best interest of the child be promoted by the change

HOW DOES A COURT DETERMINE HOW MUCH CHILD SUPPORT A PARENT HAS TO PAY?

• Florida Statute § 61.30-child support is determined by calculating a party’s net income and cross-referencing it with the number of children.  This is done on a graph listed in the statute

WHAT IS “GROSS INCOME”?

• Florida Statutes § 61.30(2)(a) states gross income includes:

1. salary and wages,

2. bonuses, commissions, allowances, overtime, tips,

3. business income from sources such as self employment, partnerships close corporations, and independent contracts.

4. disability benefits

5. worker’s compensation

6. unemployment compensation

7. pension, retirement, or annuity payments

8. social security benefits

9. spousal support from previous marriage

10. interest and dividends

11. rental income

12. income from royalties, trusts, or estates

13. gains derived from dealings in property

WHAT CAN YOU DEDUCT FROM GROSS INCOME?

• Florida Statutes § 61.30(3) says a person can deduct the following from gross income when determining child support

1. federal, state, and local income tax deductions, adjusted for actual filing status and allowable dependants and income tax liabilities

2. Federal insurance contributions or self employment tax

3. mandatory union dues

4. mandatory retirement benefits

5. health insurance payments, excluding coverage for minor children

WHAT IS NET INCOME?

• gross income minus the allowable deductions

HOW IS CHILD SUPPORT COLLECTED?

• Florida Statutes § 61.30 says that once a court order is in place, a judge also enters a Income Deduction Order.  This can be forwarded to the other spouse’s employer and child support can be automatically deducted from his or her paycheck.

CAN CHILD SUPPORT BE MODIFIED?

• A court can modify child support if the person who wants it modified can show that it is in the best interests of the child, the child reaches majority, or if there is a substantial change in circumstances of the parties.