Child Custody in Florida

Decisions pertaining to child custody, time-sharing, parental responsibility, and other parenting issues under Florida law are made in accordance to the provisions made under Pla. Stat. § 61.13(3). This basically means that a court in Florida is mandated by law to look at the best interest of the child as the primary consideration. Section 61.13(3), provides that the court has to be guided by the best interest of the child in deciding on parental responsibility alongside establishing a parenting plan. For purposes of establishing what actually entails the best interest of the child, the court has to make an analysis of all the factors surrounding the welfare and interests of the children in question alongside the general and specific circumstances of the family in question as well.

Some of the factors that are usually taken into consideration by the court are inclusive of but not limited to the fact that there is need for each parent to have demonstrated their capacity to effectively look out for the interest of the child in question. This may be demonstrated through each parent’s ability to facilitate and inspire a close and ongoing parent-child relationship, to dutifully adhere to the time-sharing schedule, and to reasonably accept changes when they come across them. Secondly, there is the expected splitting of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties. There is also the demonstrated capacity and outlook of each parent to decide, deliberate, and act upon the necessities of the child in contrast to the parent’s desires. The moral fitness of each parent is also an important factor.

These are just of the few factors that ought to be taken into consideration in order to ascertain that the child’s best interest is taken consideration when making decisions pertaining to child custody in Florida.

Father's Rights in Florida

In instances where parents have been unable to reach a mutual decision with regards to timesharing and the custody of the child/children, it is the child’s mother who is entitled by the law to decide on timesharing which in Florida basically refers to “custody”. This provision of the law is in the assumption that the child’s mother will make every decision pertaining to the child in observance of the child’s best interest.

In cases where a child’s father has been denied visitation rights by the child’s mother, the unmarried father has the option of filing a "Petition to Establish Paternity" This petition will make it possible for him to request that the Court create a parenting plan to govern parental sharing by both parties. This is likely to result in the Father being awarded timesharing as well as "shared parental responsibility" with the mother. This essentially means that both parties shall have equal rights to access the child's records and determine major decisions in the child's life despite the fact that the mother to the child shall in most cases have more timesharing. As such, it is clear that, in cases where a mother abuses the power given to her under statutory law by not basing their decisions with the child’s best interest in mind, the court will intervene upon the father’s request. The court will thereafter make a decision based on the child’s best interest.

In cases where the mother restricts the father from the time allocated by the court, the father has the right to go back to court to file a motion for contempt or enforcement of the parenting plan or court order that gives him his time with the child in question. The court will thereafter hold the mother in contempt if it finds that she willfully and intentionally defied court orders.

How to Establish Pick-Up Orders

An emergency pick up order can be made for a number of reasons. In cases where a family splits, the issue of time sharing will most often come up. It is important for the parents to come to a sound decision with regards to how they shall continue raising the children despite their split. Emergency pick-up orders are important as a result of a number of controversies that may arise when it comes to time sharing. Emergency pick-up orders are important when a parent refuses to send a child back after the child has been with the other for time sharing and also when a parent has reason to believe that their the child is in some sort of danger while in the care of the other parent and wants the court to help reclaim possession of the child. Despite the fact that the general principle that is applied with regards to pick up orders is the same, there are variations that exist when it comes to couples that were once married and couples that were never married.

As such, in a case where a parent fails to return the child to the other parent or in a cases where a mother restricts the child’s father from spending the stipulated time with the child, the father of the child will be entitled to file for an emergency pick-up order in court. This order is meant to help a parent claim or reclaim possession of the child and they are limited to specific circumstances. In order for a judge to consent to and sign an emergency pick up order, there has to be an extremely persuasive matter at hand. In normal circumstances, emergency pick-up orders are usually issued in cases where a seriously irreversible circumstance is at hand and therefore the court is obliged to act immediately. The other circumstances are such that when a parent restricts another parent from spending the stipulated time with their child in accordance with their time sharing plan.

In the instance of unmarried parents, the mother is the natural guardian of a child under Florida law. She has rights to custody that are above the father or anyone else, unless a judge says otherwise in some sort of judicial proceeding. In this scenario, the court will enter an emergency pick up orders, as appropriate. It is only under such circumstances that an emergency pick up order can be filed by the aggrieved party and actually consented to by the courts.

The Rights of Unmarried Fathers

The question of Baby Daddy’s and their rights in Florida is one that is a bit complicated. This is because first, there is the question of the lack of prior court orders and/or precedents governing time sharing or child support. The provision of the law that caters for a child born out of wedlock with regards to this issue is found under Florida Statute 744.301 which states as follows: "The mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child unless a court of competent jurisdiction enters an order stating otherwise."

What this basically means is that upon the failure to agree on timesharing between both parents, it is the mother who is entitled by the law to decide on timesharing which in Florida basically refers to “custody”. This essentially means that the fate of a baby daddy with regards to his right to visit his child and/or children alongside any other decision involving the child basically lies in the child’s mother. The assumption here is that the mother will make every decision pertaining to the child with the child’s best interest in mind. As such, it is presumed that the mother should in theory give the father some time sharing being that he is the legal father as recognized in the child’s birth certificate and therefore the child’s best interest ought to prevail. An unmarried Father also referred to as the “Baby Daddy” theoretically has "rights" to the children, despite the fact that he is most likely not able to enforce those rights.

In cases where a baby daddy has been denied visitation rights by the child’s mother, the unmarried father has the option of filing a "Petition to Establish Paternity." This petition will allow him to request that the Court create a parenting plan to govern parental sharing by both parties. This is likely to result in the Father being awarded timesharing as well as "shared parental responsibility" with the mother. This essentially means that both parties shall have equal rights to access the child's records and determine major decisions in the child's life despite the fact that the mother to the child shall in most cases have more timesharing.

If you or someone you know has a similar issue, contact our office for a consultation.