To understand the complexities of child custody, and what courts look at when considering custody, it is important first to know what child custody actually is. While we often use “custody” to mean everything, in reality, it has a specific meaning.
What is Custody?
Custody over a child generally means the ability to parent the child, and to have a meaningful parental say in the decision-making process over the important things in the child’s life. That includes making medical decisions, decisions about school, healthcare decisions, and even the day today decisions that a parent makes about how a child will be raised.
In almost every divorce (or paternity) case, parents will share custody. It is very rare for a court to take away these crucial parental rights from either parent, although it can happen in very extreme cases. But in most cases, it is not custody that parents are fighting over—it is time-sharing.
Understanding Time-sharing
Time-sharing is the actual time that each parent will have with the kids—more specifically, how many nights per week or per month the child will spend overnight with either parent. Because time-sharing is different from custody, a parent may have less time-sharing (meaning, fewer overnights with the kids), but an equal right to raise, and make decisions for, the children.
There are 20 different factors that a court can consider, when making decisions over time-sharing. Note that today, courts tend to favor giving equal nights to both parents through a 50-50 schedule (there are many different 50-50 schedules that parents can opt to use, many of which are worked out in mediation sessions between the parents).
But based on the decision of certain statutory factors, courts can and do deviate from that 50-50 schedule, providing more time-sharing to one parent over the other.
Cooperation And Civility Between Parents
The ability to abide by a time-sharing schedule, and the ability to be flexible to necessary changes, is a big factor; the parent more likely to do this, would have an advantage.
In short: courts do not favor parents who demean the other parent, are hostile to the other parent, or who cannot humanely and peacefully co-parent with the other parent.
This includes parents who talk negatively about the other parent to the child or who involve the child in the legal matters surrounding the parents. Courts will favor the parent who keeps the children out of parental disputes and the parent who is civil to the other.
Stability for the Child
Courts will also look to which parent provides the most stability for the child. That may not be based on you, as a parent, but it could be based on your situation. For example, if mom lives closer to the child’s friends, or her location allows the child to keep going to the child’s school, mom would have an advantage. Parents who live closer to the child’s grandparents and other relatives to the child, may have an advantage.
Similar to this will be how the child is doing in their current environment. If the child is doing well, courts will be hesitant to upset the child’s life.
Stability also means which parent has established (or is capable of establishing) structure for the child’s life. Which parent can enforce homework times, discipline routines, or bedtimes? It is great to be the “fun parent,” but courts do look to which parent can provide discipline in structure in the child’s life as well.
How Well Do You Know Your Child?
The Court also will want to know how much each parent has knowledge about the child’s life.
That may seem obvious, but courts will look to which parent knows who the child’s friends are. Who the child’s favorite teacher is. What the child’s favorite sport is. What health conditions the child has.
All of these things—even things that are seemingly trivial—make a difference and the parent who knows these things about the child has an advantage in a time-sharing or custody dispute.
It’s not just knowledge either. The law allows a judge to look at which parent has actually been involved in the child’s life. Which parent has a history of going more often to the child’s sporting events, extracurricular activities, or parent-teacher meetings?
Morals and Ethics of the Parents
Moral behavior is also a factor. That is not to say that the Court is judging you as a person, and mudslinging against the other parent can do you more harm than good in a time-sharing or custody dispute. But yes, the Court will judge your morals, but only to the extent that they impact the child.
So, for example, the Court may not penalize you for using drugs, or for committing adultery. But if the court feels that these habits or lack of morals may affect the child, or that the child may be exposed to them, or that they impact the child’s environment when the child is with you, then these things could have a significant impact on a time-sharing decision.
Your Health
Courts will also look at the mental and physical health of the parents. That is not to say that you cannot have some limitations, and a diagnosis does not mean you are not qualified to raise your kids. Almost everybody has some mental or physical medical history. Courts are more interested in whether any physical or mental limitation, could affect your ability to raise or care for the child.
Domestic Violence
The statute does allow the court to look into “prior actions” related to domestic violence or child abuse. Note that the statute doesn’t say “convictions,” which means that allegations, restraining orders, or other information about abuse, to either parent or child, can be considered by a court.
What About What the Child Wants?
In some cases, the child can be asked how he or she feels, but that is rare, and only in cases where the child is old enough or mature enough to make his or her own decisions. A child will never be asked “who do you want to live with,” but the child’s opinions about which parent does what, can be considered.
If the child is not old enough, then a guardian ad litem can be appointed to spend time with, and evaluate the child, as well as both parents’ home environments, to make a recommendation and speak on behalf of the child.
You may contact Anthony Diaz by calling 407-212-7807 or by email an*****@************aw.com or visit anthonydiazlaw.com for more information.
And if you found this article helpful, please leave us a review HERE.
Anthony Diaz is a Family Law and Collaborative Divorce attorney, mediator, speaker and coach in Orlando. Known as The Peacemaker, his practice specializes in divorce with dignity, mediation, collaboration, uncontested and out-of-court options to help families find peaceful solutions.
With over 20 years of experience, Anthony is passionate about helping his clients resolve conflict, reduce stress and move peacefully through the divorce process without going to court. He has helped thousands of families experience a more positive outcome.
As a Florida Supreme Court Certified Family and Circuit Civil Mediator, a State Qualified Arbitrator, and an esteemed member of the Leadership Academy of the International Academy of Collaborative Professionals, Anthony’s expertise in mediation and conflict resolution makes him uniquely qualified to help couples navigate the emotional and financial challenges of divorce.
He is an active and highly respected professional in the Florida collaborative community. Anthony serves as Co-Chair of the Florida Academy of Collaborative Professionals Outreach Committee and is a Board Member of the International Academy of Collaborative Professionals.
Prior to opening his private practice, Anthony was a CPA and an Assistant State Attorney for the Ninth Judicial Circuit of Florida. He earned his degree at Stetson University College of Law.
Anthony is also a published author, co-authoring Faces Behind the Pages and Creating Relationships and Family with Courage and Compassion. His solo works include:
• Divorce With Dignity – 3 Powerful Steps to Heal and Move Past Your Divorce N.O.W.
• !n-joy Your Relationships! – 7 Pillars to Deepening Your Connections With Passion and Purpose
• Moving Consciously Through Conflict – 5 Meaningful Steps to Mediating Conflict With Compassion
As a coach and an international speaker, his passion, mission and purpose is to help families move on from their divorce with dignity and embrace a more peaceful future.