Family Law

How do Judges Decide Child Custody in Florida

By Kristina Otterstrom, Attorney
Parents’ lifestyles and family relationships are some of the factors that influence custody decisions, but a child’s best interests are always at the heart of any custody proceeding. Learn more about what factors affect a judge’s decision.

Florida Custody Basics

A judge will decide two types of custody—physical and legal. The parent(s) with physical custody lives with the child. The parent(s) with legal custody has the power to make medical, legal, religious, and educational decisions on the child’s behalf. Parents can share physical and legal custody (called “joint custody”), or one parent may have sole physical and/or legal custody.

In limited circumstances, a judge may place limits on a parent's right to visitation. In cases involving domestic violence or abuse, a judge order that parent to have only supervised visits, which take place in the presence of a mutually-agreed upon third-party. Visits may be supervised until a judge can ensure a child’s safety with traditional visitation.

Can Parents Create Their Own Custody Agreements?

Parents can avoid the cost and stress of court by negotiating their own custody agreements. Parents can put together an agreement on their own or with the help of an attorney or mediator.

A custody agreement should be written and signed by both parents. The finalized agreement can be submitted to a judge for approval. If the agreement is complete and serves a child’s best interests, a judge can turn your agreement into an official custody order.

At a minimum, your parenting agreement should describe the following:

  • each parent’s day-to-day responsibilities for the child
  • each parent’s custody and/or visitation schedule with the child
  • each parent’s responsibility for health care including parental responsibilities over health care decisions
  • school related matters, including which parent’s address shall be used for school-boundary determination and registration, and
  • available technologies and schedule for each parent to communicate with the child.

Additionally, the parenting plan must allow either parent to consent to emergency medical care for the child. This rule applies even if one parent has sole legal and physical custody. If your parenting plan is incomplete, a judge may reject it and require you to litigate custody at trial.

What Factors Will a Judge Consider When Deciding Custody in Florida?

A judge will consider a child’s needs and family circumstances to come up with the arrangement that serves a child’s best interests. In Florida, judges will examine:

  • each parent’s willingness to encourage a relationship between the child and other parent
  • each parent’s ability to recognize and act on the child’s needs
  • the length of time the child has lived in a stable environment and the desirability of maintaining a consistent residence for the child
  • the parent’s geographical proximity
  • each parent’s physical and mental health
  • the child’s relationship with extended family members and siblings
  • each parent’s moral fitness
  • the child’s home, school and community
  • the child’s preference if the child is of a sufficient age, intelligence and understanding
  • each parent’s ability and willingness to provide a consistent routine for the child including daily meals, homework and bedtime
  • each parent’s willingness to communicate with other parent about issues with the child and adopt a unified front
  • either parent’s history of domestic violence, child abuse, neglect or abandonment
  • the child’s developmental needs and each parent’s ability to meet those needs, and
  • any other factor that affects the child’s best interests.

In cases involving domestic violence, there’s a rebuttable presumption that awarding custody to the abusive parent is detrimental to the child. Essentially, a court will presume that it’s not in a child’s best interests for the abusive parent to have sole or joint custody unless that parent can prove otherwise. Nevertheless, the abusive parent must still meet financial responsibilities for the child, including child support.

When Can I Modify Custody?

Either parent can file a request to modify custody where there’s been a substantial, material, and unanticipated change in circumstances affecting the child’s well-being. While a simple move across town won’t typically be enough to change custody, a child’s preference, recent domestic violence, or major medical changes for either parent or the child might warrant an adjustment.

A child’s best interests are still central to a modification proceeding. A judge will review many of the same factors considered in an initial custody determination whether to change custody. Additionally, a judge may also review each parent’s compliance with current custody orders, the child’s present success in school, and the custodial parent’s continued willingness to allow a relationship between the child and the other parent. All of these factors play into a child’s best interests and each parent’s ability to adequately recognize and respond to those needs.

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