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EspañolHow will a judge make a decision about custody (parental responsibility)?
In making a decision about parental responsibility, the judge will have the child’s best interests as the main consideration. These are some factors that the judge will consider in order to determine what is in the child’s best interests:
- whether the parents have shown that they can or will provide the child with a consistent routine involving discipline, bedtime, meals, etc.;
- the mental and physical health of the parents;
- the home, school and community record of the child;
- the willingness and ability of each parent to encourage a close and continuing relationship between the child and the other parent, to honor the time-sharing schedule, to be reasonable when changes are required, and to communicate with and back up the decisions of the other parent;
- how parental responsibilities will be divided up after the case is over, including how much of the responsibility will be handled by someone other than the parent(s)(i.e., a nanny);
- the ability and willingness of each parent to consider and act upon the child’s needs (as opposed to the parent’s own needs) and to be involved with child’s friends, teachers, extracurricular activities, doctors, etc.;
- the moral fitness of the parents;
- whether the parents have and will keep the children out of the court case and not bad-mouth the other parent;
- how long the child has lived in a stable, satisfactory environment and the benefit to the child of not changing that situation;
- how much traveling the child would have to do if spending a lot of time with parents who live far from each other;
- evidence of domestic violence, sexual violence, child abuse, neglect or abandonment or evidence of providing false information to the court about these issues;
- who was the primary care-taker of the child;
- the ability of both parents to meet child’s development needs;
- the reasonable preference of the child, if the judge believes that the child is mature and intelligent enough to form a preference;
- whether the parents have or will provide a home that is free of drug use; and
- any other factor that is relevant.1
You need to be prepared to give as much information as possible to help the court evaluate these and all the other factors regarding the welfare and interests of the child that the court may consider. This means gathering information the child’s other parent as well as about yourself.
For more information on how evidence of domestic violence can affect who gets parental responsibility and time-sharing, go to Can a parent who committed violence get custody (parental responsibility) or visitation (time-sharing)?
1 F.S.A. § 61.13(3)
Do I need a lawyer to get custody (parental responsibility)?
You do not need a lawyer to file for custody (sole or shared parental responsibility). However, with the help of a lawyer, it may be easier for you to gather and present the information you will need to convince the judge of your position on what the parenting plan and time sharing schedule should be. Also, if the other parent has a lawyer, it will be more difficult for you to present your case. For free legal assistance and legal referrals go to our FL Finding a Lawyer page.
If you are going to be in court without a lawyer, our Preparing for Court – By Yourself section may be useful to you.
Can I get custody (parental responsibility) of my child if I file for an injunction for protection against domestic violence?
You may ask for temporary custody (parental responsibility) of your child when you file a petition for an injunction for protection against domestic violence in Florida.1 The clerk of court will provide you with a petition form that includes a section to complete if you want the judge to make a temporary parenting plan where you can request that the abuser’s time-sharing be limited, prohibited, or supervised.2 However, parenting plan and time-sharing provisions granted with an injunction expire with that order.1 For more information on how to get an injunction for protection against domestic violence in Florida, please see our Injunctions for Protection Against Domestic Violence page.
1 F.S.A. § 741.30(5)(a)(3) & (6)(a)(3)
2 F.S.A. § 741.30 (3)(k)
Can I get child support in a custody order (parenting plan)?
A custody (parenting plan) order could contain provisions for child support. In making an award of child support, the court will consider the incomes of the parties and apply the Child Support Guidelines. The expenses of day care and health insurance will be included in the calculation. If a child has special needs, the court may consider increasing the payment based on the child’s needs. Child support can continue up to age 19 if the child is still in high school, and is performing in good faith with a reasonable expectation of graduation before s/he reaches the age of 19.1 If your child is considered a “dependent adult child,” which is defined as an unmarried adult who is incapable of self-support as a result of a physical or mental incapacity that began before the person reached the age of 18, the Guidelines do not apply. The judge will look at the factors explained in section 61.31 of the Florida Statutes.2
1 Fla. Stat. § 61.30
2 Fla. Stat. § 61.29(2); 61.1255(2)(a)
If I have sole or shared parental responsibility, can the other parent see my child's medical and school records?
The law says that both parents have the right to access records and information relating to his/her child, including, but not limited to medical, dental and school records. This includes the right to talk to the child’s doctor or teacher as well as looking at the written records. The only way to keep the other parent from being able to access those records is if the judge specifically denies the parent that right as part of court order, such as in an injunction for protection against domestic violence1 or as part of the parenting plan.
Most records will include your child’s home address and phone number. Therefore, if your child lives with you and you are trying to keep your address confidential from the abuser, or if there is any other reason that you feel that access to those records would put you or your child in danger, be sure to explain this to the judge and ask that the abuser’s rights to access the child’s records be taken away. If the judge agrees to include this in your order, you might want to give a copy of the order to your child’s teachers and doctors so they know not to give the abuser the records. If the judge does not agree to restrict the abuser’s access, you might want to ask the doctors and teachers if you can use a P.O. Box as the mailing address in the records.
1 F.S.A. § 61.13(2)(c)(7)
Where can I file for custody? (Which state has jurisdiction?)
Generally, you must file in the “home state” of the child. The “home state” is the state where the child has lived with a parent or a person acting as a parent for at least six consecutive months immediately before the child custody proceeding is started. If your child is less than six months old, the home state is the state where the child has lived from birth. This means that if you and your child recently moved to Florida, you generally cannot file for custody in Florida until you and your child have lived here for at least six months. Until then, Florida courts do not have jurisdiction (power) to make a child custody determination. For the first 6 months that you are living with the child in Florida, either you or the other parent could start a custody action in the state that your child most recently lived in for at least six months.1 However, if a case is started in the former state where you lived, then you would likely need permission from the judge in that state to move to Florida with the child, which can be difficult to get.
However, there are exceptions to this “home state rule” described above. In some cases, you can file for custody in Florida when the child and at least one parent have “significant connections” to Florida (aside from physically being in the state) and substantial evidence is available in Florida concerning the child’s care, protection, training, and personal relationships. Usually, however, you can only do this if no other state qualifies as a home state or if the home state has agreed to let Florida have jurisdiction.2 This can be complicated. If you think this applies to your situation, please talk to a lawyer. Go to our FL Finding a Lawyer page.
1 F.S.A. § 61.514(1)(a)
2 F.S.A. § 61.514(1)(b)
I fled to Florida with my children to escape domestic violence. Can I get temporary emergency custody of my child here?
Under Florida law, if you have fled to Florida with your child, you can apply for temporary emergency custody if:
- the child has been abandoned;
- it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse; or
- it is necessary in an emergency to protect the child because the child has been subjected to or is threatened with being subjected to sex-reassignment prescriptions or procedures.1
If there is already a child custody order from another state or there is an ongoing custody case in another state, any temporary custody order issued by the Florida court would be valid for the period of time that the judge believes that it would take you to return to the original court to try to modify (change) the original order.2
Getting temporary emergency custody can be difficult to do. We strongly recommend that you get help from a lawyer if you are considering filing for temporary emergency custody. Go to FL Finding a Lawyer. For information on what state is the “home state,” please see Where can I file for child custody? (Which state has jurisdiction?)
1 F.S.A. § 61.517(1)
2 F.S.A. § 61.517(3)
