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Divorce is a traumatic experience for most and may impact children more than others. Florida courts have struggled with child issues in divorce cases.

Judges have always been concerned with the best interests of children, but how best interests is approached has changed through the years. For decades, courts almost always awarded custody to the mother under what was known as the "tender years doctrine." That doctrine presumed that a mother was best suited to take care of a child during the child's early years. Fathers got visitation. Mothers got custody and with custody got authority to make decisions concerning the child's life.

The Equal Rights Amendment and more modern thinking brought with it a change in legislation. Florida statutes were amended in 1982 and also in 1991 to direct that a father be given equal consideration when judges made custody decisions and age or sex of a child cannot affect that consideration. Although the statutes were amended, many judges did not seem to agree with the amendment and the tender years doctrine continued to bubble beneath the surface.

Beginning with the 1980s, custody was phased out and replaced by the concept of shared parental responsibility and a primary residential parent. Both parents were supposed to be equally involved with decisions concerning the child's life but one would be the parent with whom the child spent the most time. The other parent would get visitation and the primary residential parent usually got child support as well.

Even though custody was no longer a term used in most cases, there was still much unhappiness because only one parent would be designated "primary" while the other was "secondary residential parent." Those titles often filtered down to the children who were burdened by the parents making much of these titles.

In 2008, the legislature with input from the Florida Bar and others tried again. It did away with labeling parents custodial, primary or otherwise and got rid of "visitation." And, it did so by placing the burden on the parents to come up with a plan. That plan, which remains in use today is known as a parenting plan. Instead of primary, secondary or custodial parent, both parents are simply referred to as parents in the parenting plan. If the parents cannot agree, the court still has authority to impose a court devised parenting plan. No matter who drafts the plan, best interests of the child are to be the primary consideration.

The statute provides the minimum detail a parenting plan must include. The plan must describe how the parents will share and be responsible for the daily tasks of a child's upbringing. The timetable of overnights and holidays that the child will spend with each parent is known as a time-sharing schedule and must be part of the plan. The parenting plan must also (1) designate who will be responsible for (a) health care, including health care decisions but must provide that either parent may consent to mental health treatment for the child (b) school related matters, including addressed to be used for school boundary determination (c ) other activities; and (2) describe in detail the methods and technologies the parents will use to communicate with the child.

If the parents cannot agree, the judge must craft a parenting plan. The judge does not have to do that alone. The court may appoint a mental health practitioner or other professional to make a parenting plan recommendation. With or without such assistance, it is mandated that the judge make best interests of the child the primary consideration.

The legislature did not want to leave anything to chance and the statutes provide 19 specific factors to be considered and, as number 20, "any other factor that is relevant to the determination of a specific parenting plan." Some of the factors include, (a) demonstrated capacity of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required; (b) demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the need or desires of the parent; (c) demonstrated capacity and disposition of each parent to provide a consistent routine, to be informed of the circumstances of the minor child, and to communicate with and keep the other parent informed; and (d) reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding and experience.

Court cases have provided guidance concerning how the statute should be applied. When judges have adopted a plan based on a long-range approach and future best interest, the judges have been reversed on appeal. Florida appellate courts explained it is the current best interests of the child at time a parenting plan is adopted and not future needs or interests that govern. Even though appellate courts have mandated living in the present, judges have leaned on historical performance of the parents and the children in determining present best interests. Which parent has been more involved with child, has been more stable and historically has best met the statutory criteria will generally be the parent with most time with the children under the parenting plan prepared by a judge.

A parenting plan is somewhat difficult to change unless the parents agree. A parenting plan will only be modified when there is evidence of a substantial change in circumstances and the best interests of the child will be improved by a change in the plan. A substantial change must be something that was not reasonably known at time the plan was adopted. There are, however, some exceptions to the substantial change in circumstances requirement.

Some appellate courts have agreed that a parenting plan can be changed when a parent refuses to comply with the time-sharing schedule. Relocation is addressed by a specific statute under which there is no presumption in favor or against relocation and the issue is decided by determining best interests of the child. The parent wanting to relocate must establish a prima facie case that relocation will be in the best interests of the child and then the opposing parent must show by greater weight of the evidence that the best interests of the child will not be advanced by relocation. Relocation certainly upsets the communication and time-sharing so those issues among others, must also be addressed in relocation cases.

The parenting plan concept has worked relatively well. It forces parents to look toward a cooperative master plan from the inception of their divorce case. It encourages cooperation. Nevertheless, there are still many cases in which the parties cannot agree and judges must draft the parenting plan.

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.