How to Win Your Child Custody Case
Fighting for Time Sharing
By Kenneth E. Rhoden, ESQ.
In divorce and paternity cases, you and the other parent can negotiate an agreement settling all the issues regarding your child. If you cannot reach an agreement you may have to fight it out in court. You can have a trial before a judge where witnesses will be examined and cross-examined, documents and other tangible items introduced into evidence, and the attorneys make arguments to the court.
In a child custody or time sharing trial, the court must apply the factors in Florida Statute 61.13(3)(a) through (t). The factors help guide the court in determining what custody arraignment is in the best interest of the child. Most judges, in their Final Judgment, make factual findings addressing each factor. Long before a trial starts you should be thinking about what evidence you can present on each factor. This article discusses a few of the things you need to know about each factor to win your child custody battle. I will quote and explain each factor here.
(a) The demonstrated capacity and disposition 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.
This is a three-part factor. First the court will want to hear evidence about what one parent has done to help the other parent remain a vital part of a child’s life. Show the court that you believe that a child needs two loving parents. Communication throughout the divorce process is important and documenting that communication by using email and text is key to winning your trial. Send a regular stream of photographs and information about the child to the other parent. Do not do anything to denigrate the other parent in front of the child or in such a way that it will get back to the child. Pouring your heart out on Facebook about what a jerk the other parent will almost for sure be used against you in trial. Restraint in using your social media is also an important consideration for the rest of your parenting life. Track your communications in a log book or a calendar and carefully preserve the emails, text messages, and other electronic files that support your hard work communicating with the other parent.
Honoring a time-sharing schedule is important. This is true if the time sharing is by informal agreement but is especially true if there is an existing court order. You must follow court orders to the letter even if the other parent refuses. Failing to show up for a drop off or pick up, the judge knows, is very distressing to a child. If, for any reason, you cannot follow the schedule on a particular day, be sure to let everyone know as soon as possible. Sometimes a parent will develop a cavalier attitude about being on time. Sometimes a parent will be late just to antagonize the other parent. The judge will not be amused. Be sure to keep a detailed daily log of all pick ups and drops offs. The log can be invaluable in helping you testify accurately and persuasively at trial. If a parent refuses to honor a time-sharing schedule, the court can use Florida Statutes 61.13(4)(c) to sanction the parent. This can include ordering make up time sharing, paying attorney fees, taking a parenting class and even modifying the time sharing plan.
With any time sharing schedule, there are times when changes will need to be made. Illness, work schedules, natural disasters, cars breaking down, vacations, weddings and funerals are all part of life. Reasonable parents deal with such events with a simple phone call or text. An unreasonable parent sees an opportunity to create a problem. It is harmful to the child to turn a minor disruption into a big problem. A court always considers which parent is looking out for the child’s best interest.
(b) The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.
From the circumstances of the parties or by a court order under Florida Statute 61.13(2)(c)2. a. the parental responsibilities of the parties will be divided. In most cases, the parental responsibilities are divided more or less equally. However, the parental responsibility of the parties is sometimes unequally divided because of compelling circumstances and time sharing must be adjusted. Perhaps one parent works very long hours and weekday time sharing is impractical. Maybe a child has a serious medical condition, and one parent is a trained nurse. One parent may be responsible for supervising an Olympic caliber child gymnast who travels all over the world and time sharing will need to accommodate the schedule.
Sometimes both parents work a lot and third parties are utilized to care for the child. Perhaps a child is a brilliant student and goes off to college while still a minor. Whatever the situation the court will consider all the circumstances in making a decision.
If using third parties, the quality of the third party is important. Third parties can include relatives, new spouses or romantic partners. The judge will want to know all about any third party who will be performing parental responsibilities.
(c) The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent.
Here the court will look at the demonstrated capacity and disposition of a parent. The parents’ actions since the conception of the child will be considered. This factor directs the court to look at which parent is actually cooking the child’s dinner and washing the child’s clothes. Notice the factor mentions the “needs or desires of the parent” but only “the needs of the child”. Even in a divorce, children are still children and the legislature decided a child’s mere desires are not something a court must consider.
While it is not healthy for parents to fawn over a child, neglect is not healthy either. There must be a nurturing balance. It is not a good idea to buy a child a previously disapproved pony or go-cart. The judge will not be impressed.
The most basic needs of a child are food, clothing, and shelter. If you are buying nice clothes for yourself, you better make sure your child has nice clothes. Often people who are divorcing acquire new romantic partners. Do not let your desire to please and spend time with your new partner infringe upon your parenting. Introducing your children to a new partner should be delayed at least until you are sure your new relationship is stable. With the trauma of a divorce and all the disruption and fear a child experiences, it is not the time to introduce a new rival for a parents’ affection. Living with your new paramour could be used against you in court.
Coming into court and saying you love your child is not enough. Your actions, over a period of time, must show your willingness to make an effort for your child. I have worked many a case where the effort a parent makes for their children has been the deciding factor. The log book previously mentioned is again a good resource to assist you in testifying to the court about your actions showing your kids are your priority.
(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
Children can get attached to the place they live. If they live in a decent home in a nice neighborhood with good schools nearby, a judge may be reluctant to make a change. A divorce can be disruptive to a child as can moving to a different home. Why add a second trauma on top of the first by taking a child away from their home, friends, and school. The length of time in one place is important so a child born and raised in one home is usually much more settled in than a child who has been in a home for a short period of time.
The court does not just look at the physical home but the entire environment. An empty palace is not as good as a warm, nurturing shack. A parent seeking substantial time sharing with a child should have a home filled with books, art, good food, nice people, and of course love. The home must be safe and the court will look at everything from second hand cigarette smoke to an unfenced pool. The surrounding neighborhood must also be safe.
An unfenced water retention pond with an alligator, a busy highway, or a high crime area, are all things that may give a judge concern. If there is a problem with any aspect of the environment your child will be in, fix the problem. If there are no smoke detectors in your home, get them. Firearms in the home, get a gun safe. Unfenced water retention pond with an alligator, call the authorities. Even if you cannot completely eradicate every problem, making an effort will show your concern.
(e) The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of either parent with a child.
The farther apart parents live the fewer exchanges of children the court will order. Courts always consider what is in a child’s best interest and sitting in a car or airplane is mostly wasted time. A judge will want to minimize the time spent in transit. Parents who live an hour apart will have a very different time sharing schedule than parents whose backyards abut. If you are the parent who is out, or going to be out, of the former family residence, my advice is simple. Live close by. The younger the child, the closer you should live. A toddler can toddle a house or two with a parent, a ten-year-old can bike alone a few streets over, and a sixteen year old with a car can drive a few minutes. A parent who chooses to live closer to their child is showing their concern for the child and is perceived as emotionally close to the child.
Of course, when children are in school, they are tied to a particular place and a particular schedule. There is homework to complete and extracurricular activities to attend. My advice is do not live further from the child’s school than the other parent. If you are forced to move from the family residence, move closer to the child’s school. Move across the street from the school your first grader attends. In court explain how you walk your child to school every morning. That sounds like a geographically viable plan to me.
(f) The moral fitness of the parents.
Do not lie, cheat, or steal. If you do lie, cheat, or steal, do not let your child know it. If you are a lucky or skillful criminal and the prosecutor has not been able to prove you committed a crime beyond a reasonable doubt, you may nonetheless have problems in family court. In family court, a fact can be proven with only a preponderance of the evidence. So even if you were found not guilty of a crime in a trial the other parent can try, in family court, to convince the judge you committed the crime.
Sexual activity outside the marriage, to which the child is not exposed, does not have much impact on time sharing. There was a time when adultery, having children outside of marriage, living together without the benefit of marriage, would get you labeled an unfit parent and you might be kept away from your children. Now a judge will probably be more interested in the impact of such behavior on a child than the mere fact of such activity. For example, if you are now spending your time and money on your new love, the court will be interested. More so in the time and money not devoted to your child than anything else.
Sexually adventurous activity by parents like group sex or bondage is only important for the potential impact on a child. If the child is not exposed, the judge may not be interested. If what happened in Vegas stayed in Vegas, it is probably futile to try and use the events in court. Mutually agreed upon licentious behavior by parents will not, because of gender, count against one parent more than the other.
Gambling, once considered a vice, is now legal, though regulated. Brevard County has legal gambling in Melbourne and gambling cruises out of Port Canaveral. The mere fact that a parent gambles is not important. Of course, the time-sharing award may be affected if a parent is a gambling addict and spends all their time and money gambling.
The bottom line is what impact does the activity of the parent have on the child. If there is no detriment to the child actions once considered immoral may have little impact on a court’s decision regarding time sharing.
(g) The mental and physical health of the parents.
The mental health of a parent can be a significant factor in a dispute over time sharing. Time sharing can be restricted if a parent may be a danger to themselves or others. The court will look at the nature of the mental health issue and evaluate the possible impact to a child. To put a parent’s mental health in issue before the court, you need to present evidence of specific conduct. Your opinion that the other parent is crazy or a narcissist is not enough. Threats or attempts of suicide could give a court concern. Suicide attempts from long ago become less important. Therapy and medication can help resolve mental health issues. Expert witnesses can be crucial in a trial that involves mental health issues. If you have mental health issues, do all you can to mitigate or resolve the issue.
The physical health of a parent can be important in a time sharing dispute if one parent is physically unable to care for a child. The age of the child will be a critical factor. An infant needs more hands on physical care than a five year old. But the mere fact that a parent is disabled is no reason to restrict time sharing. I would expect a court to go to great lengths to accommodate a disabled parent.
(h) The home, school, and community record of the child.
This is a very important factor since the court is always trying to determine the best interest of the child. The factor is important in establishing an initial parenting plan and especially important if a court is asked to modify an existing parenting plan. If a child is doing well in all areas, the court is more likely to try and preserve the current situation. If the child is struggling, a court will try to determine the cause and make changes accordingly.
In looking at how the child is doing at home, the court will be interested to hear if the child obeys the parents or is defiant. Is the child engaged with the parents or is there an emotional or physical distance? Is the child happy or sad, healthy or sickly, helpful around the house or constantly sits around playing video games? Frequently, there are very different stories from the parents about how the child does at home with each taking credit or pointing a finger of blame. Being able to present additional evidence such as third party witnesses, photographs, or tangible items is crucial. For example, relatives, friends, or neighbors who are in your home frequently can make great witnesses. Pictures of you and your child playing or doing chores together are hard to dispute. A go-cart that you and your child built at home together with design and build notes in the child’s handwriting would destroy a claim that the child is not bonded to a parent.
In looking at how a child is doing in school, the court will of course consider grades but also look at behavior. A child who does well in school almost always has strong family support. Conversely, a child with no support at home frequently struggles at school. You will need to be prepared to present evidence showing what you do to help your child. Take credit if credit is due. The age of the child is important in looking at this factor. A three or four-year-old may have little or no school or community record. On the other hand, a normal, healthy sixteen year old may spend little time at home.
A judge will want to know what a child is actively involved in when they are not at home or school. The judge will also want to know a parents’ responsibility for that activity be it good or bad. Church, scouting, or community service at a homeless shelter are worthwhile activities. A parent who facilitates involvement is a good parent.
A child who hangs out with a gang on the corner or who goes off to where no one knows could be headed for real trouble. Whatever the parents are doing is not working. Expect a judge to consider making major changes in the parenting arrangement.
(i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
With the judge’s consent a child can tell the judge what they think regarding a parenting plan. The child can not only express their preference but also give the reasons for their preference. The judge will set the scope of the child’s testimony. The legislature did not set a minimum age that a child must be before a court can consider allowing a child to testify.
If you want a child to testify in your trial, you must file a motion setting out the reasons. The judge can hear the motion at any time but in Brevard County, judges usually want to hear all the other evidence before hearing the motion. After hearing all the evidence, it may be clear that the child’s testimony will not be helpful or only helpful on a specific issue.
In the hearing on the motion, you will need to convince the judge that the need for the testimony outweighs other concerns. Judges do not favor allowing a child to testify because of the trauma it can inflict on the child and the possible damage to the parent child relationship. In the hearing, the judge can take additional testimony from witnesses, listen to a summation from the attorney about what the child may say, and hear argument of counsel. The judge has a lot of discretion in allowing a child to testify or not and such decisions are rarely overturned on appeal. Do not bring a child to the courthouse before the judge says the child can testify. Florida Family Law Rule of Procedure 12.407 specifies that no child shall be brought to court to testify without a prior court order. The judge will direct how and when the child testifies.
The judge will also control how the testimony takes place. The child may testify in open court before the parents and attorneys or the judge may exclude the parents and attorneys. The judge may question the child or may allow the attorneys to question the child.
Even if the child cannot testify, there are other ways for the judge to learn what the child thinks. Under certain circumstances, a psychologist or therapist who has been treating the child can relay to the judge what a child thinks. Pursuant to Florida Family Law Rule of Procedure 12.363 a court can order an expert to perform a child custody evaluation which would include gathering information from many sources including from the child. For a very young child an expert may be the only way to get information from the child to the court.
In rare circumstances, a child’s previously expressed preference can be presented to the court through a hearsay exception. A police officer might be allowed to testify that as soon as the child saw a parent the child began to scream, “no, no, I don’t want to go” and the child then cowers in fear. You would need to present a lot of evidence regarding the surrounding circumstances before a judge would hear, or give much weight to, such testimony.
(j) The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to, the child’s friends, teachers, medical care providers, daily activities, and favorite things.
This factor will test how well you know your child. Be prepared for a quiz at trial. Dig into the minutia of your child’s life. It is true that a man can be an outstanding father to his ten-year-old daughter without knowing what size dress she wears. It is also true that a skillful opposing attorney can make that same father look uninformed with a few simple questions. Better to be prepared to answer, “of course I know she wears a 9 or 10 depending on the style but even some tens are tight in the shoulders probably because her shoulders are well developed from gymnastics” … and you just keep talking until the attorney is very sorry they ever asked the question.
Do not be alarmed if you suddenly find yourself in a divorce and there are areas of your child’s life where you are lacking in knowledge. You have plenty of time to learn the details. It is good to know your child’s doctor’s name. It is better to also know the physician assistants’ and receptionist’s name. If you are not good with names, take notes. The goal is that while you are testifying you can easily and believably go through the facts.
If the other parent is not interested in certain areas of your child’s life be sure to let your attorney know. It can make for brutal testimony when this ignorance is exposed in court.
(k) The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, and daily schedules for homework, meals, and bedtime.
Most children do better with a consistent routine. The younger the child the more this is so. A divorce can be a big disruption in a child’s life so you need to be able to show the court that you will provide a consistent routine for the child.
This is especially true in the area of discipline. It may be tempting to slack off on discipline during a divorce. Don’t do it. The child may be happy but the judge will not be impressed. During the divorce, it is usually better to stick with whatever the norm is for discipline. The exception is where one parent is unreasonable concerning discipline. If a parent is too lax, to strict, or just too weird concerning discipline, it may be time for a change. Establish a new routine for discipline but be prepared to explain to the judge why the new routine is necessary and in the child’s best interest.
A consistent routine does not mean you have to be rigid. Do not rush home from Disney for 9:00 p.m. bedtime. Go on vacations, take day trips, have fun with your child. As children move through their teen years a consistent routine may become more aspiration than reality. That is OK. Just make sure the child gets fed, does their homework and gets enough sleep however chaotic the schedule on any particular day.
(l) The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child.
Judges know that a child does best when both parents are fully involved in the child’s life. Show the judge that you are committed to co-parenting your child. Even if the other parent does not reciprocate, send a steady stream of information. This may be difficult for you to do because of how you feel about the other parent. But you know, and the judge knows, it is in the child’s best interest that parents share information. It is also good for your case. The judge will see that you are a good parent and give you plenty of time sharing.
Do not try to cut the other parent off from information about the child. In fact, when you are in a child custody or time sharing battle you should shower the other parent with information about the child. If the child is sick or injured promptly inform the other parent. You do not want to have to explain to the judge why you waited an hour to call the other parent when you had to take your child to the emergency room. Perhaps the teacher tells you little Johnny is not doing well in history. Let the other parent know. You get points for being in touch with the teacher and for sharing the information. If your child is getting an award at school, take pictures and send them. Christmas, Thanksgiving, Halloween and vacations are great times to take and share pictures of your child with the other parent.
The way you send the information is important. Do it in a way that creates evidence that can be used at trial. Text or email, then print and keep in a folder. If you have to send hard copies, make a copy of what you send. Do not depend on your phone to store this information, save it in hard copy.
Children are more likely to respond favorably if parents speak with one voice. Children are adept at manipulating parents. An infant cries to get a parent to respond. A teenager has a frightening array of skills to get what they want. Children know parents are especially vulnerable when they are fighting each other. Don’t yield to pressure from your child. When issues come up, communicate with the other parent to reach agreement on major issues. Then you present the decision to the child. Even though you are fighting over custody, you are still the only parents the child has.
If the other parent refuses to adopt a unified front, be sure to document the behavior. Use text or email to document the conversation. If the issue involves third parties, like a teacher, doctor, or coach, involve them in the conversation with the other parent. A teacher, doctor, or coach can be a valuable witness to unreasonable behavior.
(m) Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect, regardless of whether a prior or pending action relating to those issues has been brought. If the court accepts evidence of prior or pending actions regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect, the court must specifically acknowledge in writing that such evidence was considered when evaluating the best interests of the child.
In a child custody or time sharing case, a parent can, of course, present evidence of domestic or sexual violence, and of child abuse, abandonment, or neglect. These allegations are serious and if accepted by the court can result in restricted time sharing and one parent being given sole parental responsibility.
Domestic violence, sexual violence, and child abuse, are crimes and any statements you make in a child custody case can be used against you in a criminal case. This is true even if you were not previously arrested. Your statements can provide the missing piece of the puzzle the police need to arrest you. Even if you were arrested and the prosecutor dropped charges, they can still prosecute you for six months after the initial arrest. If you are the accused, it is crucial that your family law attorney is also an experienced criminal law attorney. At Rhoden Law Group, we have the attorneys with the experience you need for your case and three locations to serve you.
In criminal court, it is often best for a defendant to not make any statements. Since the burden of proof is on the State alone, a defendant may decide not to testify at trial. In family court each party has a burden to prove to the court any fact they want the judge to consider. If you fail to testify in family court about a particular incident you may be conceding that the other parties version of the facts is correct. If the accusation is that you touched your child inappropriately, and you concede this issue, your access to your child could be restricted or eliminated. However, if you testify, you may be putting yourself in jeopardy in criminal court. You need to carefully weigh all the possible consequences in deciding to testify or not.
A party can present evidence on domestic and sexual violence or child abuse or neglect even if an arrest was never made. Such evidence can also be presented, and the court may accept or believe the evidence, even though a person was found not guilty in a criminal trial. This is because there are different standards of proof in criminal court than family court. In criminal court, the standard of proof is beyond a reasonable doubt. In family court, the standard of proof is a preponderance of the evidence, which is a much lower standard.
For factor (m), unlike the other factors, the court must make a written acknowledgement if the court accepts evidence of domestic or sexual violence, or child abuse, abandonment, or neglect. This is because of the serious nature of the evidence and the great weight the court may give to the evidence. If the court considers the evidence too weak to use, the court is not compelled to put anything in writing.
(n) Evidence that either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect.
With regularity people come into court, swear to tell the truth, then lie. Sometimes the lies are small and sometimes people shade the truth so much that it becomes a lie. In fact, it is rare when witnesses’ perceptions of an event exactly match. What is screaming to one person is a raised voice to another. On time for a child drop off is late to another person. Judges are used to dealing with these flaws in human character and perception. However, lying about domestic or sexual violence or child abuse, abandonment, or neglect is in a different category. Except for abandonment, they are allegations that are potentially criminal. The legislature wanted courts to pay particular attention if a parent lied about such events. If caught in such a lie, a witnesses’ creditability is destroyed and a court may choose to disregard other testimony by the witness.
My advice is to not lie. Do not lie to your attorney and do not lie to the court. If you think the other parent may present false evidence to the court, the way to fight back is to get a good, experienced attorney. Cross examination has been called the best device for uncovering the truth even invented. I agree. A lying witness is a vulnerable witness and extensive trial preparation coupled with a vigorous cross examination can ensure the lying witness is exposed.
(o) The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties.
For this factor, you should present evidence about what you do to raise your child.
You should also be prepared to keep the other parent from exaggerating what they do. This includes the daily routine and tasks that are performed weekly or even sporadically.
For example, tell the judge what you do for the child every day like fix the child breakfast and making sure the child gets dressed and brushes their teeth. Of course, the age of the child and their needs at the time determine what tasks have to be performed. For an infant – diaper changes and fixing a bottle. For a teenager- waking them up in the morning and driving them to dance practice in the afternoon may be the routine.
Proving you are the parent who performed particular tasks may be difficult. Typically, the parents are in the home but no other adults are present. It is not unusual for each parent to claim they always or with rare exception fix dinner, give the child a bath, read to the child, and put the child to bed. The remedy for this is extensive trial preparation and sharp cross examination of a lying parent.
This is one area where keeping a daily log is important. Every day write down what you do for the child. The log usually is not introduced into evidence but can be used to help you remember what happened on particular days. The log can also be used to show what percentage of time you performed a particular parenting task. Testifying that you fixed dinner for the child 87% of the time, you ate out 9% of the time and the other parent only fixed dinner for the child 4% of the time is impressive. At that point the other side usually concedes the issue.
Parenting tasks and responsibilities that are performed outside the home are easier to nail down. If there is a dispute about which parent drops the child off for daycare you can call a daycare worker as a witness. At some daycares you sign the child in and out. Those records can be introduced into evidence. Doctors and dentists usually keep track of which parent accompanied the child. We can get the records.
(p) The demonstrated capacity and disposition of each parent to participate and be involved in the child’s school and extracurricular activities.
Schooling is, of course, very important to your child’s future. If you are not involved in your child’s school, you should get involved. The school provides many opportunities for you to participate. Most parents cannot take advantage of all the possibilities but you should be as involved as possible. If you can walk your child to class – walk your child to class. If you can eat lunch with your child – eat lunch with your child. Stay in touch with the teachers. Teachers make very good witnesses. Use the online resource edline.net, volunteer whenever possible, join a parent teacher organization, and drop the child off and pick the child up.
Be involved in the child’s academics. Make sure your child has the right assignment, completes the assignment, and hands in the assignment. Even if your child is far beyond what you can help with – your child is taking physics and you struggle with fractions – you can supervise homework. If your child is struggling be the first parent to suggest getting your child extra help. Perhaps the child can stay after school for extra instruction or you can secure a tutor.
One excuse I hear often from a parent who is not involved in the child’s school is that the other parent will not let me or refuses to tell me what is going on. In a divorce case this is a pretty poor excuse. You have a legal right to be involved in school and a judge may see your failure as a lack of interest. In a paternity case, get your legal rights established as soon as possible. Then get involved with your child’s school.
If you have not been involved in your child’s school it is not too late. Many families divide responsibilities so one parent may be involved in school and the other parent is the primary bread winner. In a divorce a lot of things change so get involved in school now. By the time of the trial you can show the judge you have the ability and desire to be an integral part of your child’s schooling.
Extracurricular activities are another way for children to reach their potential. Dance, piano, football, and swimming can all be beneficial to your child. Coach the team, be an assistant, raise funds, contribute where you can contribute. The important thing is to show the judge that you love your child, that you want to be involved in your child’s life, and that you are actually putting forth the effort to participate in your child’s life.
(q) The demonstrated capacity and disposition of each parent to maintain an environment for the child, which is free from substance abuse.
If you are abusing any substance do whatever you need to do to stop. You can destroy any chance you have for substantial timesharing with your child. If your friend lives with you and they are a substance abuser, get them out of your house. If you are allowing your child to be around illegal drug use the Department of Children and Families may remove the children from your care. Half measures are not sufficient to deal with this issue. Call our office and we can advise you on the steps you need to take.
Alcohol is legal and regulated and marijuana is becoming legal and regulated.
Drinking a beer or two around your child is fine. Don’t drink twenty. Using marijuana around your child is a bad idea. Even if your use is legal a judge would question your parental decision making.
Smoking cigarettes around a child in the home or car was once totally acceptable. Not anymore. Do not expose your child to second hand smoke. We now know secondhand smoke poses a serious health risk to your child. Judges do not take this issue lightly.
(r) The capacity and disposition of each parent to protect the child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child.
In high stakes litigation emotions run very high. No litigation is more emotional than when determining custody and time sharing issues. It is very tempting to tell the child about what is going on. You may feel everything you are doing in your case is completely fair and the other parent is using underhanded tactics. However much you want to tell the child all about the litigation, do not. Do not disparage the other parent in front of the child. It is not in the child’s best interest. If a judge finds out they will not be pleased with you. Put your child’s interest above your desires and refrain. Even children who have been abused usually still love their parent on some level. Do not take shots at the other parent on social media. For many reasons, Facebook is no place to discuss the case.
If the other parent is discussing the litigation with the child or making disparaging comments, try to document what is being said. Third parties who overhear comments can be called to testify. Preserve any social media, texts, or emails that are directed to the child or that the child may access.
However, under Florida Statute 934.03, it is a crime in Florida to audio tape someone without their knowledge and permission. The judge will not allow the recording into evidence. There is an exception under Florida Statutes 934.03(2)(k) for a minor to record someone who is committing or intends to commit an act of violence or an unlawful sexual act against the child. Also, in certain cases, a judge will allow the child to testify about what a parent has been telling them.
(s) The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs.
For this factor present evidence that as your child moves through their developmental stages that you have adjusted your parenting accordingly. Show the court that you know that a three month old, a three year old or a thirteen year old all have completely different needs. Be sensitive to the fact that different children mature at different speeds. Maybe your child does not want or need to play with blocks anymore. Move on to something more sophisticated.
Be thoughtful in what you purchase for your child. Your purchases make evidence that is easy to present to the court. It is good to buy books for your child. If you buy Cat in the Hat or Fifty Shades of Gray for your ten-year-old, the court will know you are out of touch.
Some parents resist as children transition into teenagers. Show that you know how to set reasonable boundaries. Teach your child to drive and let them use your car sometimes. However, this does not mean it is a good idea to let your 16-year-old and their friends drive to Panama City for spring break.
If the other parent is making mistakes in parenting decisions try to correct them. Document what is going on with emails, texts, and photographs. Keep receipts when the other parent makes inappropriate purchases for the child. Your testimony alone about what is going on is good evidence. Your testimony backed up by physical evidence is great testimony.
(t) Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.
The above 19 factors give courts, attorneys, and parents some guidance in what to focus on in determining a parenting plan but no list could ever be complete so the legislature included this catch all factor.
Unusual situations may give a court pause but the judge is always looking out for the child’s best interest. Maybe a parent has been in the military and deployed several times. Should that parent be at a disadvantage because they have not participated in school and extracurricular activities? Of course not. Entertainers like circus performers, musicians, or professional athletes may travel a lot. People living self-sufficiently out in the country may hardly ever leave their property. Parenting plans for each of these families could be very different. For any situation, you should be prepared to present evidence to the court of what is in the child’s best interest. Show the court that your proposed parenting plan will not just allow the child to survive but will help the child thrive.
Be Nice in Negotiation, be Aggressive in Litigation
It pays to be nice but persistent while negotiating your case. Put yourself in the best possible negotiating position by starting your trial preparation as soon as possible. It is not enough to be a good parent; you must be able to prove to the court that you are a good parent. If you cannot reach an agreement in your case, you need to be aggressive, and work hard to get the best possible outcome for your case.
The above article just scratches the surface of what you need to know about the factors and how they will apply in your particular case. It all comes down to gathering, developing, and then introducing evidence in your case. To get in contact with an experienced, aggressive divorce attorney call our office at 321-549-3162 (call or text) for a free consultation at our Rockledge, Eau Gallie, or Melbourne offices (by appointment).