Child Custody

1
Child Custody

• Part 2 The Custody Decision, Modification, and
  Relocation

2
From Property to Person (almost)

• Pre-19th Century Common Law Children were the
  property of their fathers
• 19th Century Development of the Tender Years
  Doctrine and custody awards of younger children
  to mothers
• 1960s and 70s Best Interests of Child
  becomes dominant standard
• 1970s and 80s Joint Custody laws enacted

3
Sole vs Joint Custody

• Joint Custody becoming more common as society
  changes and fathers play a greater childrearing
  role in intact families which they expect to
  continue post-divorce
• Some states have a presumption of joint custody,
  but that does not mean a 50-50 split of the
  childs time

4
Joint Legal vs Joint Physical

• Joint Legal Custody
• More common than Joint Physical
• Shared decision-making, not necessarily different
  from sole custody in terms of time spend with
  each parent
• Joint Physical Custody
• Still a minority of cases
• Child spends substantial, but necessarily
  precisely equal, time with each parent

5
Mix and Match

• Can have joint legal without joint physical
• Most common arrangement
• Can have joint physical without shared decision
  making on major issues (joint legal)
• Can have demarcated joint legal custody
• Certain types of decisions (medical, religious,
  educational) assigned to one parent or the other)

6
Nesting Arrangements

• Special type of Joint Physical Custody
• Children stay in primary residence and parents
  rotate in and out
• Works only where parties can cooperate at a high
  level and can afford three separate residences
  (fathers, mothers, childrens)
• Doesnt permit geographic mobility and makes
  remarriage and additional children difficult

7
Custody by Any Other Name

• Recent efforts to reduce the conflict inherent to
  possessory (fighting) words like custody and
  visitation
• Alternate terminology
• Parenting Plan
• Parenting Time
• Residential Time
• Parental Responsibility (FL)

8
Custody Policy Statement (FL)

• It is the public policy of this state to assure
  that each minor child has frequent and continuing
  contact with both parents after the parents
  separate or the marriage of the parties is
  dissolved and to encourage parents to share the
  rights and responsibilities, and joys, of
  childrearing. After considering all relevant
  facts, the father of the child shall be given the
  same consideration as the mother in determining
  the primary residence of a child irrespective of
  the age or sex of the child.- Fla. Stat.
  61.13(2)(b)(1)

9
Custody (Parent Responsibility) Presumption in
Florida

• The court shall order that the parental
  responsibility for a minor child be shared by
  both parents unless the court finds that shared
  parental responsibility would be detrimental to
  the child.
• - Fla. Stat. 61.13(2)(b)(2)

10
Areas of Shared Parental Responsibility (Joint
Custody)

• In ordering shared parental responsibility, the
  court may consider the expressed desires of the
  parents and may grant to one party the ultimate
  responsibility over specific aspects of the
  child's welfare or may divide those
  responsibilities between the parties based on the
  best interests of the child.
• Areas of responsibility may include primary
  residence, education, medical and dental care,
  and any other responsibilities that the court
  finds unique to a particular family.
• - Fla. Stat. 61.13(2)(b)(2)(a)

11
Rotating Custody in FL

• Fla. Stat. 61.121 provides that the Court may
  order rotating custody if the court finds
  rotating custody to be in the best interest of
  child after considering
• Child's age, maturity, and preference
• Length of each custody period
• Disruptive influences created by alternating
  custody schedule including distance between
  residences, school, etc.
• Parent's attitude toward each other and how
  attitudes might affect children.

12
Bests Interests of the Child?

• Influenced by two books written by Goldstein,
  Freud (Sigmunds granddaughter), Solnit in the
  late 1970s
• Beyond the Best Interests of the Child
• Before the Best Interests of the Child
• These books placed great emphasis on what has
  become known as bonding and the concept of the
  primary caretaking parent

13
Best Interests Defined?

• Set of statutory factors related to parenting
  issues
• Original statutes from Iowa and Minnesota with
  approximately ten factors served as the model for
  the rest of the country
• Floridas factors are found in Fla. Stat.
  61.13(3)

14
Florida Definition of Bests Interests of Child
13 factors

• (a) The parent who is more likely to allow the
  child frequent and continuing contact with the
  nonresidential parent.
• (b) The love, affection, and other emotional ties
  existing between the parents and the child.
• (c) The capacity and disposition of the parents
  to provide the child with food, clothing, medical
  care or other remedial care recognized and
  permitted under the laws of this state in lieu of
  medical care, and other material needs.
• (d) The length of time the child has lived in a
  stable, satisfactory environment and the
  desirability of maintaining continuity.
• (e) The permanence, as a family unit, of the
  existing or proposed custodial home.
• (f) The moral fitness of the parents.   

15
Florida Best Interests Factors (continued)

• (g) The mental and physical health of the
  parents.
• (h) The home, school, and community record of the
  child.
• (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.
• (j) The willingness and ability of each parent to
  facilitate and encourage a close and continuing
  parent-child relationship between the child and
  the other parent.
• (k) Evidence that any party has knowingly
  provided false information to the court regarding
  a domestic violence proceeding pursuant to s.
  741.30.
• (l) Evidence of domestic violence or child abuse.
• (m) Any other fact considered by the court to be
  relevant.

16
Interpreting Best Interests

• Factor (a) - The parent who is more likely to
  allow the child frequent and continuing contact
  with the nonresidential parent
• Not present in most original child custody
  statutes
• Reflects growing concern about parents who
  alienate children from the other parent
• It placement as factor a reflects it importance
  in the decision making process

17

• Factor (b) - The love, affection, and other
  emotional ties existing between the parents and
  the child.
• Custody cannot be awarded to resolve a party's
  emotional problems. Miraglia v. Miraglia, 462 So.
  2d 507 (Fla. 4th DCA 1984). Trial courts
  concern that mother would be suicidal if she lost
  custody was improper factor.

18

• Factor (c) - The capacity and disposition of the
  parents to provide the child with food, clothing,
  medical care or other remedial care recognized
  and permitted under the laws of this state in
  lieu of medical care, and other material needs.
• Smoking where child has asthma found to be an
  issue, Thomas v. Harris, 634 So. 2d 1136 (Fla.
  1st DCA 1994).

19

• Factor (d) - The length of time the child has
  lived in a stable, satisfactory environment and
  the desirability of maintaining continuity.
• If one parent is able to retain the marital home
  in which the children have been raised, they may
  have an advantage on this factor. Adair v Adair,
  720 So. 2d 316 (Fla 4th DCA 1998)

20

• Factor (e) - The permanence, as a family unit, of
  the existing or proposed custodial home.
• Post-divorce remarriage or live-together
  arrangements by one or both parents can influence
  this factor depending on whether those
  anticipated changes in the structure of the
  family unit appear to be stable and long-lasting.
  Jacoby v Jacoby, 763 So. 2d 410 (Fla 2nd DCA
  2000)

21

• Factor (f) - The moral fitness of the parents.
• Focus on whether the parent's behavior has a
  direct impact on the welfare of the child.
  Connection between the acts of parent and impact
  on child must have an evidentiary basis and
  cannot be assumed.
• Mere possibility of harm to child from parent's
  conduct is insufficient.
• However, do not have to have proof of actual
  harm, past or present. Maradie v. Maradie, 680
  So. 2d 538 (Fla.1st DCA 1996) Dinkle v. Dinkle,
  322 So. 2d 22 (Fla. 1975), superseded by statute
  as stated in, Kuutti v. Kuutti, 645 So. 2d 80
  (Fla. 4th DCA 1994)

22

• Factor (g) - The mental and physical health of
  the parents.
• Merely contesting custody does not place a
  parents mental health at issue sufficient to
  waive privilege as to treatment records.
  Freshwater v Freshwater, 659 So. 2d 1206 (Fla 3rd
  DCA 1995)
• Where information about treatment is vital to a
  proper determination of permanent custody, the
  privilege must give way to the best interests of
  the child. Critchlow v Critchlow, 347 So. 2d 453
  (Fla 3rd DCA 1977)

23

• Factor (h) - The home, school, and community
  record of the child.
• Evidence relating to grades, extracurricular
  activities, sports, community involvement,
  behavioral issues are all relevant to this
  factor. Stamm v Stamm, 489 So. 2d 851, (Fla 5th
  DCA 1986)

24

• Factor (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.
• This is not a dispositive factor standing alone.
  Gaber v. Gaber, 536 So. 2d 381 (Fla. 3d DCA
  1989).
• Can be a very important factor for teens
• But remember, there is no age at which a child
  can choose which parent to live with.

25

• Factor (j) - The willingness and ability of each
  parent to facilitate and encourage a close and
  continuing parent-child relationship between the
  child and the other parent.
• Not one of the original factors
• Added, as with factor (a), out of concern for
  parents who engage in alienating behavior such as
  the alleged but unproven PAS
• A pattern of denying or frustrating visitation
  may in come cases constitute a substantial change
  of circumstances justifying a transfer of
  custody. Williams of Williams, 676 So. 2d 493
  (Fla 5th DCA 1996).

26
What is PAS? Does it Exist

• Parental Alienation Syndrome (PAS) was the
  brainchild of Richard Gardner, Ph.D.
• Whether PAS exists has always been controversial
• Not sufficiently researched and documented to
  constitute a true psychological syndrome
• However, everyone involved in family law has seen
  concrete evidence of alienating conduct by parents

27

• Factor (k) - Evidence that any party has
  knowingly provided false information to the court
  regarding a domestic violence proceeding pursuant
  to section 741.30.
• A component of alienating behavior is often false
  allegations of domestic violence made to gain an
  unfair advantage in custody litigation.
• In those states that do not have this as an
  expressed factor, the courts will consider this
  under one of the other factors such as moral
  fitness or mental and physical health

28

• Factor (l) - Evidence of domestic violence or
  child abuse.
• The abuse need not be directed at the child or in
  the childs presence
• There need not be proof of a criminal charge or
  conviction
• There need not have been a prior request for or
  issuance of a domestic violence injunction

29

• Factor (m) - Any other fact considered by the
  court to be relevant.
• A catch all for evidence that does not fit
  neatly under any of the other factors
• The factors are not intended to be exclusive, and
  the court may consider anything it finds to be
  helpful is deciding PRC (primarily residential
  custody). Collins v Collins, 873 So. 2d 1261
  (Fla 1st DCA 2004).

30
Findings on the best interests factors in FL
(minority view)

• The case law does not require the trial court to
  make specific findings regarding the designation
  of primary residential parent (PRP). Such
  findings are required in many other states to
  assist in appellate review.
• Belief is that detailed findings can often harm
  the children involved.
• However, the trial record should support a
  sufficient basis. Bader v. Bader, 639 So. 2d 122
  (Fla. 2dDCA 1994) Railton v. Railton, 639 So. 2d
  189 (Fla. 2d DCA 1994) Murphy v. Murphy, 621 So.
  2d 455 (Fla. 4th DCA 1993) Duchesneau v.
  Duchesneau, 692 So. 2d 205 (Fla. 5th DCA 1997)

31
Separating Siblings (Divided Custody)

• Children in a family should not be separated from
  one another absent the most compelling of
  circumstances. Henderson v. Henderson, 537 So. 2d
  125 (Fla. 1st DCA 1988) Arons v. Arons, 94 So.2d
  849 (Fla. 1957).
• Half siblings not controlling. Munson v. Munson,
  702 So. 2d 583 (Fla. 2d DCA 1997).

32
Prompt Custody Decisions Required

• Timeliness of judge's decision is important
• Where 14 months elapsed between trial and oral
  ruling and 16 months before ruling reduced to
  writing, new trial required. Falabella v.
  Wilkins, 656 So. 2d 256 (Fla 5th DCA 1995).

33
Parental Custody Agreements Not Binding on the
Court

• The Court may reject agreements or mediated
  agreements where the terms are not in the best
  interests of the children. Feliciano v.
  Feliciano, 674 So. 2d 937 (Fla. 4th DCA 1996)
  Holland v. Holland, 458 So. 2d 81 (Fla. 5th DCA
  1984).
• Consistent with courts role as parens patriae on
  child related issues like custody, visitation,
  and support

34
Tools to Assist the Court in Custody Cases

• Guardian ad litem
• In camera (in chambers) interview with child
• Home Study or Investigation
• Psychological Evaluation

35
Guardian ad litem (GAL)

• Attorney or Non-attorney with specialized
  training and certification through a Guardian Ad
  Litem Program
• Represents the childs best interests, not an
  advocate for the childs wishes (which would be
  an attorney for the child)
• May conduct independent investigation and submit
  written report and recommendation (20 days before
  hearing in FL)

36
Advantages and Disadvantages

• Adds a neutral third party whose only allegiance
  is to the childs best interests
• GAL can conduct investigation that judge cannot
  (visit home and school, speak with family members
  and treating professionals)
• Adds cost (if attorney) and complexity in
  scheduling
• Creates a bidding war between the parents for
  the support of the GAL.

37
In Camera Interview of Child

• Purpose is primarily to determine if child is
  mature enough to express a custodial preference
  and to determine that preference
• Must be recorded if requested by either party,
  and failure to make a record of the interview is
  reversible error

38
Advantages and Disadvantages of In Camera
Interview

• Allows child to express preference in less
  threatening setting than if in open court in
  front of parents
• Many judges are not especially adept interviewers
  of children, and may unwittingly ask wrong or
  irrelevant questions that will mask the childs
  true preference

39
Home Study (Social Investigation)

• Court may order in any contested case, cost paid
  by the parents
• Study performed by qualified court staff, a
  licensed child-placing agency, psychologist,
  clinical social worker, marriage and family
  therapist, or licensed mental health counselor
  (or DCF if parent is indigent and court does not
  have adequate staff)
• Written report with recommendations and factual
  findings presented to court and counsel for each
  party
• Court may consider the report which will not be
  excluded by traditional evidentiary rules

40
Psychological Evaluations

• Psychological evaluations authorized by
• Fla. Stat. 61.20 (good cause must be shown
  and mental condition must be in controversy)
• Fla. R. Civ. P. 61.360 (psychological evaluation
  may be ordered as part of social investigation)
• If done for court evaluation purposes, there is
  no privilege associated with the evaluation

41
Advantages and Disadvantages of Psychological
Evaluations

• Much more in-depth look at family functioning and
  relationship issues than with other types of
  evaluations
• Good screening for mental health problems that
  are impacting parenting and suggestions for
  resolving those problems through treatment
  (medication or therapy)
• Can take many months to complete
• Cost can be thousands of dollars
• Some judges merely rubber-stamp evaluators
  recommendation without independently reviewing
  the evidence

42
Custody Modification

• There are facts concerning the welfare of the
  child that the court did not know at the time the
  decree was entered, or
• There has been a change in circumstances shown to
  have arisen since the decree.
• Promotes the finality of the judicial
  determination of the custody of children. After
  the trial court enters the original final
  judgment decree, it is res judicata of the facts
  and circumstances at the time the judgment became
  final.
• Presumption in favor of the reasonableness of the
  original decree.
• Presumption may be overcome when changes in
  circumstances have arisen which warrant and
  justify modification of the original decree.
• No requirement to show detriment to child in
  order to obtain modification (reverses prior case
  law)
• Wade v Hirschman, Florida Supreme Court No. No.
  SC04-1012, May 26, 2005

43
What usually isnt enough

• Fact that parents cannot get along is not a
  substantial or material change in circumstances
  which without more justifies a change in custody.
  Zediker v. Zediker, 444 So. 2d 1034 (Fla. 1st DCA
  1984).
• A primary residential parent's decision to
  relocate "in the absence of other compelling
  circumstances does not in and of itself support a
  change of custody." Botterbusch v. Botterbusch,
  851 So. 2d 903 (Fla. 4thDCA 2003).
• Children's changing desires, preferences and
  interests as a result of growing up do not,
  standing alone, create a substantial change of
  circumstances. Finney v. Giddens, 707 So. 2d 856
  (Fla. 2d DCA 1998) Gibbs v. Gibbs, 686 So. 2d
  639 (Fla. 2d DCA 1996).

44
Process/Discretion for Modifications

• Must be based upon pleadings and a properly
  noticed hearing. Gelato v. Basch, 658 So. 2d 664
  (Fla. 4th DCA 1995).
• Court has less discretion in deciding
  modification than in deciding initial custody.
  Dobbins v. Dobbins, 584 So. 2d 1113 (Fla. 1st DCA
  1991).

45
Relocation Cases Todays Custody Battleground

• Fla. Stat. 61.13(2)(d) replaced prior case law
• Most state statutes and case law (including FL)
  are based on the standards in the New Jersey
  decision in DOnofrio v DOnofrio, 365 A. 2d. 27,
  affd 365 A. 2d. 716 (1976)
• No presumption in favor of or against a request
  to relocate when a primary residential parent
  seeks to move the child and the move will
  materially affect the current schedule of contact
  and access with the secondary residential parent

46
Statutory Relocation Factors

• Whether the move would be likely to improve the
  general quality of life for both the residential
  parent and the child.
• The extent to which visitation rights have been
  allowed and exercised.
• Whether the primary residential parent, once out
  of the jurisdiction, will be likely to comply
  with any substitute visitation arrangements.
• Whether the substitute visitation will be
  adequate to foster a continuing and meaningful
  relationship between the child and the secondary
  residential parent.
• Whether the cost of transportation is financially
  affordable by one or both parents.
• Whether the move is in the best interests of the
  child.

47
Trends/Problems in Relocation

• Some states enacting intra-state, not just
  inter-state, relocation restrictions (so-called
  75 or 100 mile rules)
• As with custody, judges attitudes and values
  come into play as many of these cases involve
  remarriage or job issues
• Most judges will say that these are their most
  difficult cases because it is winner take all
  where in custody there are compromise options
  such as joint or rotating custody if both parents
  are good custodial prospects