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It's The Law: Parenting Plans Replaces Primary Residence And Custody In Divorce Cases

Q: I am getting divorced. A friend told me Florida has a new law about child custody. Will that affect my case?

A: Earlier this year, Florida's Legislative modified the child custody provisions of Florida Statute Chapter 61. That chapter deals with divorce, child support and related issues.

The old law required courts to determine custody in divorce cases and for a primary residence for a child. In a true custody award, the custodial parent exercisers all parental decision making authority.

Florida's concept of custody required shared parental responsibility, under which both parents were to be responsible for decisions affecting their children. If the court found that shared parental responsibility would be detrimental to a child, the court could order all or part of that responsibility be held solely by one parent.

The old law required judges to determine which parent's home would be the primary residence for the children and included a shopping list of factors to consider such as (a) which parent would be more cooperative with visitation; (b) ties between parent and child; (c) ability and disposition of each parent to provide for the child; (d) length of time a child has lived in a stable environment; and (e) moral fitness of each parent.

The new law went in to effect on October 1, 2008. Although custody in the old form of complete control might still be awarded, courts are now required to order or adopt a parenting plan.

Under the old law, visitation could be vague. Now, the parenting plan must describe in detail how parents will share and be responsible for daily tasks associated with upbringing of a child, time sharing schedule arrangements, designate who will be responsible for health care, school related matters and other activities and the methods and technologies that the parents will use to communicate with the child.

Shared parental responsibility for decision making is still considered important and is to be ordered by the court unless the court finds that shared decision making would be detrimental to a child. If a parent has been convicted of a felony involving domestic violence, it is presumed that shared parental responsibility will be detrimental to the child unless the parent can show that presumption is not valid.

The new law specifies 20 items to be considered by a court when creating, modifying or approving a parenting plan. The 20 th criteria is any factor that is relevant to determination of a specific parenting plan, including the time sharing schedule. Factors to be considered under the old law are generally brought forward in the new statute. The new statute adds additional factors, including:

1. evidence that either parent has knowingly provided false information considering prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect;

2. the particular parenting tasks customarily performed by each parent and the division of parental responsibilities before institution of litigation and during the pending litigation;

3. demonstrated capacity and disposition of each parent to participate and be involved in the child's school and extracurricular activities;

4. demonstrated capacity and disposition of each parent to maintain an environment for the child free from substance abuse;

5. capacity and disposition of each parent to protect the child from the ongoing litigation as demonstrated by not discussing the litigation with or providing documents to the child and refraining from disparaging comments about the other parent to the child.

The new law mandates more comprehensive and detailed plans for children. It is also an effort to remove emphasis on "winning" the custody fight. Instead of terms like custody, primary residence and visitation, the statute uses shared parenting and time-sharing. Details are required to avoid arguments that have arisen in the past over pick up and drop off, holidays, communication and even travel.

Parenting plans have been main-stream in some other states for years and have had good success. They have been used in many Florida cases prior to the new law; but only on a case by case bases. It is hoped that the new statute will force an approach and structure to these issues in divorce cases that will be beneficial to children and minimize friction between parents.

As with all legal matters, the circumstances and facts of your particular case can affect the outcome. You should discuss your case with an experienced attorney at your earliest opportunity.

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