Florida Best Interest Factors

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.  However, 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 in deciding child custody disputes.  These factors are considered when creating a parenting plan as part of a dissolution of marriage or petition for paternity.  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.)

  1. “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.

  1. “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.

  1. “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.

  1. “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.

  1. “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.

  1. “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.

  1. “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.

  1. “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.

  1. “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.

  1. “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.

  1. "The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, and daily schedules for homework, meals, and bedtime."

Don’t let your kid run around like they own the place.  You’re the parent, and it’s your job to make sure the child has a consistent routine and some sense of structure to their life after divorce.  Routine and consistency are crucial for all children, but especially for children who are dealing with divorce. The court will consider how well each parent does with providing the needed care and consistency for the child, looking more favorably on parents who can provide structure to their child’s life.

  1. "The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child."

Even after divorce, parents need to have an open line of communication about matters concerning the child.  You don’t have to be best friends or even like each other, but you do still have to talk in some way to your ex about your child.  For better or worse, you share a child, and it is important for your child to be able to live his or her life without having to be a messenger.  If something major is going on in your child’s life, both parents should be aware.  Florida courts frown upon a parent’s failure to communicate with the other parent about things such as healthcare, schooling, and other major issues in the child’s life.

  1. "Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect, regardless of whether a prior or pending action relating to those issues has been brought. If the court accepts evidence of prior or pending actions regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect, the court must specifically acknowledge in writing that such evidence was considered when evaluating the best interests of the child."

Domestic violence is not acceptable, and will be considered when determining an appropriate time-sharing schedule.  An isolated incident may not prevent a parent from visitation with the child. However, depending on the situation, visitation may be reduced or require supervision if the court feels that violence will be a continuing problem in the home.

  1. "Evidence that either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect."

This is similar to the previous factor.  If there have been incidences of violence or abuse, you should be upfront about the issues instead of trying to conceal them.  This will only make things look worse in the long run. This factor does not only apply to a parent that has been the abuser, but also to the other parent. If there has been a history of violence or abuse by the other parent, the victim of abuse may be inclined to gloss over the issue, rather than bringing up the past.  Failing to disclose these kinds of issues to the court can be seen as the inability to properly care for and protect the child even if you were not the cause of the abuse or violence.  It is a parent’s job to protect the child from abuse, even when that abuse comes from the other parent.

  1. "The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties."

If one parent has always cared for the child, it is unreasonable to expect the parent who has been absent to take on a much larger role.  A more substantial portion of the time-sharing will likely be awarded to the parent who has handled more responsibilities in the past.  If one parent has not been active in many parental responsibilities in the past, but has proven that they are capable of taking on a larger role after separation, this will be looked at by the court as well.

  1. "The demonstrated capacity and disposition of each parent to participate and be involved in the child’s school and extracurricular activities."

If one parent is involved in the child’s schooling and organized sports or other after-school activities, that parent will be given greater preference under this factor.  Even if you may not have an interest in ballet or baseball, the activities your child is involved in are important to your child and should be fostered.  Remember, you’re not washing outfits and rushing to get to practices for your benefit.  You’re doing it for your child.  A parent who fails to take their child to extracurricular activities the child is enrolled in will have this factor counted against them. This doesn’t mean you have to enroll your child in 2 different sports and sign them up for every after-school program there is, but if you and your ex have decided to commit to a sport or other activity, you need to do your part to be involved and ensure the child is able to attend those events.

  1. "The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse."

If there is a documented history of substance abuse on the part of one parent, that parent may be given less preference if the court believes the substance abuse may continue to be an issue in the future.  This doesn’t mean you are never allowed to have a drink in front of your child, but if a guardian ad litem (a neutral third-party who focusses on the needs of the child) asks your child about you only to hear that one parent always has a drink in their hand or does illegal drugs in front of the child, that will be a problem.  Don’t expose your child to your bad habits if you can avoid it.  Divorce can be hard to deal with and if you find yourself turning to substances, seek counseling and do your best to avoid exposing your child to problems with substance abuse.  Documented substance abuse itself is not the issue.  The issue is substance abuse becomes an issue when it is in the presence of the child or has a detrimental effect on the child.

  1. "The capacity and disposition of each parent to protect the child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child."

I mentioned last week that the child’s preference may be taken into consideration when deciding time-sharing and custody. Involving the child in litigating the divorce should only be done when absolutely necessary.  Divorce can be hard enough for parents to deal with, but putting the child in the middle of a contested divorce or child custody battle can have detrimental impacts on the child and should be a last resort.

  1. "The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs."

A newborn baby that is breastfeeding will likely need to spend much more time with the mother.  Additionally if one parent is more adept at dealing with other developmental needs of the child, that parent will likely be awarded more time-sharing.  This factor can also come into play when children with special needs are involved.  If one parent has previously taken primary responsibility in caring for the special needs of a child, that parent will be seen as having demonstrated the capacity to handle the child’s needs and would be awarded greater time-sharing.

  1. "Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule."

Of course, my personal favorite, “any other factor”.  I joke about this being literally anything the judge wants to look at, but that’s basically what it is.  If the judge thinks something is relevant and can articulate a reason why it’s relevant, then it can be considered.  So, just because something may not be spelled out in one of the other factors doesn’t mean it can’t be considered.

To summarize, always be the best parent you can be, and you’ll have the best chance at having a meaningful share in your child’s life after divorce.