News from Family Law Section of the Florida Bar

The revised parenting statute that became law effective October 1, 2008, (Senate Bill 2532) has been the source of at least one myth, namely that this law establishes a 50/50 presumption for time sharing. Initially a minor but annoying surprise to those of us who helped develop this law, in some parts of the State this is developing into a dangerous judicial interpretation.

There is a long history of attempts within the Family Law Section at revising and improving this statute. In recent years a concerted effort was made by some to adopt a "mandatory or presumptive 50/50 custody" approach. This concept was thoroughly examined and the expert opinions of mental health professionals familiar with children needs were carefully considered. This idea was strongly rejected by the study committee based on the overwhelming opinion of these experts who felt that such presumptions are not in the best interest of children, each family being considered unique, with its own history and dynamics. The conclusion was that a one-size-fits-all approach was completely out of place in matters relating to children where a determination of the children's best interests, based on the circumstances of each family, is the controlling standard.

Unfortunately, this experience involved heated debates which seem to pit competing parent groups who, while reciting the best interest chant, seemed more concerned with their own rights as parents. It then became evident that we needed to get away from looking at parent's rights and needed to focus more on children's rights and best interests and to carefully draft proposed laws so that they could not be used as weapons by litigating parents. This approach was deemed to be in everyone's best interest, not just the children's, and it was clear that without it we could look forward to a bitter stalemate. To this end many of the terms which were felt by some to be slanted and to be fueling parent discord were deleted (see, for example, Fla. Stat. Section 61.046), and the factors were extensively upgraded and additional factors added (see 61.13(3)), all in an effort to redirect the focus towards best interest. This, however, did not alter the basic shared parenting principles of our law.

The supporters of the 50/50 interpretation point to the specific prohibition against any presumption for the father or the mother (Section 61.13 (2) (c)), the absence of any other clear language, and the deletion of such terms as "custodial" and non-custodial" parents to make their argument. However, viewing the terminology deletions in isolation, and focusing on the lack of other language in this one section, is simply to look at less than half the picture. First, there is absolutely no language creating a 50/50 presumption, and simple logic would dictate that such a "climate changing" event would have been noted during the drafting. Second, parenting determinations are based on best interests, and the factors make it clear that best interest is to be determined by considering the detailed history of every family and its unique facts. See 61.13(3). Moreover, many of the factors contain specific language as to the parents' "demonstrated capacity" or "demonstrated disposition for..." performing particular parenting tasks. See 61.13(3) (a) (c) (j) (k) (o) and (r). Rather than starting with a full range of options to be used depending on the circumstances of each family, the 50/50 time sharing idea arbitrarily sets an artificial starting point. The Family Law Section is aware of this misinterpretation and a proposed legislative fix is pending, making it clear that there are no presumptions as to time sharing and emphasizing that the individual circumstances of each family are to be considered in determining best interest. (Editor's Note: This fix is contained in the Children's Issues bill referenced in the "Legislative Update" section below; see line 367 of the enrolled version of CS/CS/CS/SB 904).

Regardless of what percentage of time sharing may result, any parenting plan or time sharing schedule that is supported by a thorough application of the factors merits serious consideration; focusing on a desired end product, with only a passing regard for the factors, is to protect the perceived best interests of one parent at any cost, the very approach that the statute disfavors. One can best help by putting the client in the best factual light, highlighting the involvement and caring for the child that has taken place, and can continue to be expected, or work towards rehabilitation if needed. This is going to take the kind of early review and preparation that good attorneys are known for, and a lack thereof will have serious consequences.