Part 2 – The Custody
Decision, Modification, and Relocation

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

 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 child’s time

 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
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Still a minority of cases
Child spends substantial, but necessarily precisely equal, time with each parent

 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)

 Special type of Joint Physical Custody
 Children stay in primary residence and parents rotate in and out
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Works only where parties can cooperate at a high level and can afford three separate residences (father’s, mothers, children’s)
Doesn’t permit geographic mobility and makes remarriage and additional children difficult

 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)

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“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)

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“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)

 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)

 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:
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Child's age, maturity, and preference
Length of each custody period;
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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.

 Influenced by two books written by Goldstein,
Freud (Sigmund’s granddaughter), & Solnit in the late 1970’s
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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

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

(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.

(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.

 Factor (a) - The parent who is more likely to allow the child frequent and continuing contact with the nonresidential parent
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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

 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 court’s concern that mother would be suicidal if she lost custody was improper factor.

 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).

 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 4 th DCA 1998)

 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 2 nd DCA 2000)

 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.
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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)

 Factor (g) - The mental and physical health of the parents.
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Merely contesting custody does not place a parent’s mental health at issue sufficient to waive privilege as to treatment records. Freshwater v
Freshwater , 659 So. 2d 1206 (Fla 3 rd 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 3 rd DCA 1977)

 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 5 th DCA
1986)

 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.

 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.
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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 5 th DCA 1996).

 Parental Alienation Syndrome (PAS) was the brainchild of Richard Gardner, Ph.D.
 Whether PAS exists has always been controversial
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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

 Factor (k) - Evidence that any party has knowingly provided false information to the court regarding a domestic violence proceeding pursuant to section 741.30.
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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”

 Factor (l) - Evidence of domestic violence or child abuse.
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The abuse need not be directed at the child or in the child’s 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

 Factor (m) - Any other fact considered by the court to be relevant.
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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 1 st DCA 2004).

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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)

 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).

 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 5 th
DCA 1995).

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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 court’s role as parens patriae on child related issues like custody, visitation, and support

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

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Attorney or Non-attorney with specialized training and certification through a Guardian
Ad Litem Program
Represents the child’s best interests , not an advocate for the child’s 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)

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

 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

 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 child’s true preference

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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

 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

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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 rubberstamp evaluator’s recommendation without independently reviewing the evidence

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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.
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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

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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).

 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).

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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 D’Onofrio v D’Onofrio , 365 A. 2d. 27, aff’d 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

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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.

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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