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By: William G. Morris, Esq.

The two biggest issues in most divorce cases are money and children. Who gets the kids and how often involves a variety of considerations for the parties, including which party "wins," taking the kids to punish the other parent and even child support. In some cases, the parents actually focus on what is best for the children, but due to the high level of emotion in a divorce case, each parent's opinion of what is "best" can be markedly different.

In Florida's earliest days, the courts tended to treat children's issues as property rights. Judges applied the inherited common law of England that the father would determine custodial issues. In the late 1800s, control by the father was generally replaced with a judicial predisposition toward the mother. The preference for custody awards to the mother was originally based on the concept of tender years. Since mothers at that time were generally homemakers and took care of children while the father was employed, the courts followed family structure in awarding custody.

Judicial preference for custody awards to the mother continued for decades but growing presence of women in the work place and outside of the home led courts to increasingly deviate from the tender years doctrine. As the twentieth century approached, courts begin referencing best interest of the child as the most important matter in custody cases and treated children like chattels.

No fault divorce was introduced by statute in 1971. As part of no fault divorce, the legislature determined that custody and visitation were rights that would be awarded based on best interest of the child and, in an effort to end the tender years doctrine, statutorily confirmed that the father would be given the same consideration as the mother in custody disputes. Florida courts did not seem to follow that idea. Even the Florida Supreme Court continued to rule that the tender years doctrine was not inconsistent with the new statute. The legislature went back to the drawing board and in 1982 added the phrase "regardless of the age of the child" to the statute. After that, the courts seemed to agree that the legislature meant what it said.

With the onset of "no fault divorce", mudslinging that had previously been used to prove "fault" in a divorce moved into the child custody arena, as each parent sought to introduce everything he or she could to prove the other parent should not get the kids. In an apparent effort to minimize mudslinging in no fault divorce, the legislature re-visited child custody in 1982. The statute was amended to create the concept of shared parental responsibility. That concept means both parents retain full parental rights and responsibilities to make major decisions affecting their children and decisions are made jointly. Best interest of the child would be the primary consideration by the court in determining who got the kids and because both parents had to be involved in major decisions, the parent with the child would not have exclusive authority. The concept of custody under which one parent would have exclusive authority to make decisions was replaced by the statute and, instead of custody, the courts now dealt with who would be the primary residential parent.

After 26 years of experience with shared parental responsibility, the legislature again waded in. In 2008, the statute was amended to get rid of the labels of "custodial parent" and "primary residence" and replaced them with "timesharing" and "parenting plan". Florida statutes had contained a list of factors to be considered in awarding primary residence, but the 2008 statute expanded the list of mandatory considerations in an effort to get everyone focused on best interest of the children. The change in terminology gradually filtered through to divorcing parents and increased focus on what is best for the children and cooperation between ex-spouses who are still parents.

In 2016, the legislature passed a bill that would have required judges start with the premise that a child should spend equal time with each parent. Judges would be still be required to consider at least 20 criteria to determine an ultimate parenting plan in the best interest of the child, but establishing equal timesharing as the starting point would be a game changer. Governor Scott vetoed that bill, explaining that in too many cases equal timesharing would not be in a child's best interest. He did not want to establish 50/50 timesharing, as the starting point for judges.

A statutory timesharing schedule was introduced again in the 2017 legislature, but in more limited application. It is now part of the laws governing the State's involvement with child support. If the State is administering financial support to a parent, it seeks support from the other parent. In these cases, the Department of Revenue does not go to court, but pursues an administrative hearing. The Department cannot pursue a parenting plan or ask the hearing officer to impose one. But, under the new statutes, the Department may include a parenting plan in the order if the parents agree on that plan.

To encourage establishment of a voluntary parenting plan, the Department is ordered by the new statute to provide a copy of a standard parenting time plan with its notice of proceeding to establish an administrative support order. A standard parenting time plan provides for the paying parent to have the child or children the second and fourth full weekends of each month, one evening per week, Thanksgiving break in even numbered years, half of winter break and two weeks every summer.

The new law reconfirms that primary consideration of a parenting plan is still best interest of the child, but the legislature has presumably determined what would be in the best interest of the child in most cases is the parenting plan in the statute. Parents in these cases might well accept what they believe to be a legislative and judicially approved parenting plan over which they have little to no say as part of resolving the state's effort to establish child support. It may well be the camel's nose under the tent that will bring back the legislature's effort to use 50/50 timesharing as the starting point in all cases.

William G. Morris is the principal of William G. Morris, P.A. William G. Morris and his firm have represented clients in Collier County for over 30 years. His practice includes litigation and divorce, business law, estate planning, associations and real estate. The information in this column is general in nature and not intended as legal advice.