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Wills & Probate

How does the court determine custody of children?

First of all, in Florida, applicable statutes use the terms “parental responsibility” and “primary and secondary residence” in describing what is commonly referred to as “custody.” Parental responsibility contemplates how major decisions involving minor children will be made. Typically, shared or joint parental responsibility is most commonly awarded to both parents. Under shared parental responsibility, major life decisions such as those education, medical care, religious upbringing, etc. for minor children are supposed to be made jointly by the parents. Florida courts will normally only award sole parental responsibility to one parent under extreme circumstances such as those involving abuse or extreme neglect of the children. In Florida, awarding one parent sole parental responsibility for minor children (or what some laymen would call “sole custody”) is the exception rather than the rule.

Primary residential responsibility describes the parent with which the minor children will primarily reside. The parent not awarded primary residential responsibility will have visitation with the children and the children will secondarily reside with that parent as ordered by the court. To determine primary residential responsibility, the court looks at what is in the “best interests of the children.” To make that determination, Chapter 61 Florida Statutes sets forth criteria which the court may consider. This criteria includes factors such as which parent is more likely to allow frequent and continuing contact with the nonresidential parent, the love and affection between the parents and the children, the capacity of the parents to provide for the children, the moral fitness of the parents, and the mental and physical health of the parents. Determination of residential responsibility will determine the the payment of child support. Most often, the nonresidential parent will pay child support to the parent awarded primary residential responsibility.

 

In some less frequent situations, a court will consider a shared parenting arrangement known as “rotating custody.” Under this arrangement, the parents usually share parental responsibility. Residential responsibility is then rotated between the parents as determined by the court.

Since 2008, there must be a "Parenting Plan" established in connection with every dissolution of marriage involving minor children. These plans will cover much of what has been discussed above and are specifically intended to assure the involvement of both parents in the decision-making on major issues in a child’s life.