Disclaimer: The following is based solely on my own experiences and opinions and should not be construed as legal advice as each case will depend on the specific facts of your situation.
Family law is a very different area of the law compared to civil or criminal. It is much more fluid and open to interpretation than other fields of law. Of the different laws and rules that are involved in practicing family law, the “best interest of the child” is one that can be especially contentious. Florida Statute Section 61.13(3) provides that “when establishing or modifying parental responsibility and creating, developing, approving, or modifying a parenting plan . . . the best interest of the child shall be the primary consideration.”
If “the best interest of the child” is the primary consideration in determining an appropriate parenting plan, who decides what "best interest of the child" means? In family law matters, the judge makes the ultimate decision as to what is in the best interest of the child. Luckily, the Florida legislature provides a list of factors to be considered when determining what "the best interest of the child" actually means. Too bad the factors listed in the statute (Fla. Stat. 61.13(3)) are equally vague. This means a judge has very broad discretion in making their determination and can lead to a great deal of uncertainty.
Florida Statute 61.13 lists 20 different factors that a judge is supposed to contemplate when deciding what is in the best interest of the child. My favorite of these 20 factors is the very last one: “Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.” In other words, anything else the judge feels may be important. Even though a judge has a lot of discretion in their decision, the judge does not typically just do whatever they feel like. (Although technically they can, so long as they can articulate a rational reason for making their decision.)
I thought it may be a bit ambitious to try to cram all 20 best interest factors in one week, so I’ve decided to split this topic into two weeks, covering the first 10 factors this week, and the second 10 next week. The first 10 factors considered in determining the best interest of the child in Florida are as follows.
- “The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required.”
Many times parents have already been separated for a while by the time it’s time for the actual final dissolution hearing. During that time, some natural schedule and post-separation habits have already developed. Each parent’s behavior before and after separation can be looked at to determine if each parent seems willing to cooperate with the other parent. If one parent has been disparaging the other parent or failing to bring the child to the other parent at agreed upon times, the other parent will get the point for this factor.
- “The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.”
Who is going to bathe the child, feed the child, take the child to school, help the child with homework, and just generally care for the child? Will a nanny be involved for one or both parents? If one parent shoulders most of the responsibilities that parent will have this factor in their favor.
- “The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent.”
Imagine a father going to the grocery store with a $40 budget for groceries for the week. The father buys a steak, a case of beer, some frozen food for himself, and 2 boxes of cereal for his two children for the week. This is the scenario I think of for this factor. But, it’s not just limited to something so obvious, and does not have to be neglectful. This factor should be considered any time one parent continually acts selfishly, putting their own interests ahead of those of the child. Children don’t just need food, they need proper housing, clothing, and education as well.
- “The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.”
This factor comes into play when one parent moves to another school district or anywhere that may be a substantial distance away from the home where the child had been living. It may be in the best interest of the child (again, all other things being equal) to remain in their current school and neighborhood, rather than moving to a school near the parent that moves out of the marital home. This factor is also considered generally in the context of which parent provides a stable, healthy environment for the child.
- “The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of either parent with a child.”
It would not make much sense for a parent who lives 50 miles away from the child’s school to have time-sharing throughout the school week forcing the child to spend multiple hours a day in the car just to get to and from school. On the other hand, if parents live a short distance from each other, this factor might not be considered at all.
- “The moral fitness of the parents.”
Morals are always changing and evolving. They can vary drastically from religion to religion and from state to state. For the purposes of Florida family law, courts do not consider morals in this light per se. An individual has the right to their own sexual preference, religious beliefs, and morals. Generally, this factor is applied more in the context of one parent disparaging or speaking ill of the other parent. A Florida case from 2002 put it best when they said: “In determining a party's moral fitness for purposes of custody, the trial court should focus on whether the parent's conduct has had or is reasonably likely to have an adverse impact.” Willis v. Willis, 818 So. 2d 530 (Fla. 2nd DCA 2002), citing Packard v. Packard, 697 So. 2d 1292 (Fla. 1st DCA 1997). The parent’s morals themselves are not necessarily at issue. This factor becomes an issue when one parent’s moral or ethical decisions are actually, not hypothetically, detrimental to the child.
- “The mental and physical health of the parents.”
Mental or physical limitations or illnesses are not in and of themselves an issue when deciding time-sharing issues. However, when the health of one parent causes concern for the well-being of the child, the court must consider this in determining the best time-sharing approach.
- “The home, school, and community record of the child.”
Parents are expected to be involved in their child’s life. Parents can be involved by assisting with homework, ensuring children make it to after school sports/activities, and generally just talking to their children about their school life and extra-curricular activities. It can be exhausting to come home from a long day at work only to come home and struggle to figure out how to do 5th grade math. It is important, though, to understand what the child is learning in school. This helps the parent to better communicate with the child as they grow. Children of parents who fail to take an interest in the child’s schooling tend to have poorer grades, which can develop into more long term issues as the child grows up.
- “The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.”
There is no hard and fast rule as to when a child has “sufficient intelligence, understanding, and experience”. Generally though, a judge will consider any child that is not yet a teenager as not having sufficient understanding or experience. Ultimately it is the judge’s decision whether to allow the child’s preference to be given weight. Parents should be very cautious when deciding to approach a time-sharing dispute by involving the child of any age. The ability to shield the child from litigation is another factor Florida courts consider when determining the best interests of the child.
- “The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to, the child’s friends, teachers, medical care providers, daily activities, and favorite things.”
This factor is very similar to #8. In addition to helping the child with homework, it is important to discuss the child’s day and life more generally too. The court may consider how involved a parent is in the child’s life and how well the parent knows the child. If one parent doesn’t know who the child’s friends are, what their favorite toys are, or just generally doesn’t know what is going on in the child’s life, this factor will be looked at as favoring more time-sharing for the other parent who takes the time to really get to know the child.
Well, I’m not sure anyone really appreciates feeling like they are being judged, but that is exactly what happens when there is a contested divorce. If you and your spouse cannot come to an agreement on your own or through mediation, you will be judged…..by a judge. These are just the first 10 factors the judge will use to make his or her determination of what is in the best interest of the child. If you make it to this point of litigation in a divorce, get used to being judged because there are 10 more factors you will be judged on listed in the statute. That’s enough judgment for one week. I will discuss the other 10 best interest factors in next week's blog.