People often ask family law attorneys, “How does custody work in a divorce?” This piece answers that question, covering child custody options in a divorce. We start with core relevant aspects of Florida divorce and child custody laws: parental responsibility, time-sharing, and the parenting plan. Then we provide the basic seven-step process of custody determinations (which, per Florida’s divorce and child custody laws, are wrapped into the dissolution of marriage – i.e., divorce – cases).
Divorce & Child Custody: Terminology
Here are three key terms/concepts to know:
1. Parental responsibility (legal custody)
In a divorce, child custody, referred to as timesharing, includes your right as a parent to make legal, religious, educational, or medical decisions for your child. In Florida, this capacity is called parental responsibility. In family law cases involving children, the court must award either sole parental responsibility to one parent or shared parental responsibility. Florida courts rarely award sole parental responsibility.
2. Time-sharing (physical custody)
The time you are able to spend parenting your child is called time-sharing in Florida family law terminology. A timesharing schedule can be established by the court, or the parties can make their own timesharing schedule and the court will approve the plan, so long as it is in the best interests of the child(ren). All timesharing schedules approved by the court must be in the best interests of the child.
Timesharing is typically set forth so that both parents have equal timesharing, one parent has majority timesharing, or, in certain cases, one parent will have supervised timesharing. Equal timesharing means both parents have an equal amount of overnight timesharing with the minor child. When a parent has majority timesharing, it means they have more than half of the overnight timesharing in a year. If there are credible instances of abuse, neglect, abandonment, or domestic violence, supervised time-sharing can be established.
3. Parenting plan
Parental responsibilities and time-sharing must be outlined within a parenting plan. The court may approve a single parenting plan submitted jointly, in the case of a settlement agreement, a parenting plan proposed by one of the parties, or, if neither party proposes a parenting plan that is in the child’s best interests, the court may establish one itself.
The following four items must be included:
- the parent who is proposed to be responsible for educational and health issues, or a designation of shared or sole parental responsibility;
- the timesharing schedule;
- a plan for child-related communications between the parents; and
- a plan for day-to-day parental responsibility.
How Does Child Custody Work In A Divorce? The 7-step Custody Process
The process through which timesharing and parental responsibility for a child is granted to a parent or parents is as follows:
1. Research and preparation
Plan ahead and think about your children’s best interests as you consider a potential time-sharing schedule and parenting plan. Know what kind of schedule you want, or at least can work with, and whether you want to hire an attorney to help with your case or proceed pro-se (self-represented).
Custody X Change, an app designed to help parents design a parenting plan, stresses the importance of working with a lawyer for strategy and representation. You have a better chance of seeing a favorable outcome with an attorney at your side, and it can reduce the stress associated with the litigation process.
If you do not think you can afford an attorney, you can look into legal aid services, which offer free or low-cost legal advice and representation. It is also critical to review the General Information for Self-Represented Litigants, provided by the Florida courts, even if you plan to hire an attorney. This guide will give you a general outline of what to expect and provides a glossary of legal terms that you will hear during your case.
2. Petition filing
The next step is to start a law case. Usually, a judge will hear and guide the case, although general magistrates sometimes preside over the cases where both parties are self-represented. A general magistrate will provide recommendations in your case to be approved or rejected by a judge.
If you are going through a divorce, issues related to minor children – parental responsibility and timesharing, as well as child support – are included in the divorce case and must be settled before your divorce case can be completed.
While this post handles the question, “How does child custody work in a divorce?” your situation may be different. You can open a child custody case even if you remain married, in which case you will have to petition for the orders separately. For those who are unmarried, even if paternity is not itself an issue, child support, time-sharing, and parental responsibility are determined through a paternity case.
3. Parenting class
The State of Florida seeks to mitigate the negative impact that divorce can have on families through education. Therefore, it is mandatory that you take a Parent Education and Family Stabilization Course if you file for a divorce with minor children in Florida. The course is four hours long. Before a final judgment is issued by the court, you must complete this class.
Each parent has 45 days after the opening of the case to make their mandatory disclosures, which is a list of financial information you must provide. You each must complete a financial affidavit, using the appropriate form if your income is over $50,000 or up to $50,000.
In some cases, you may need or want to know more information than mandatory disclosures provide. That may lead to extended discovery, such as requests for evidence, subpoenas, and depositions (interviews under oath).
For any contested dissolution cases or cases involving minor children, Florida courts require the parties to attend mediation. A mediator certified by the Florida Supreme Court will lead this process. The mediator should be completely impartial, focused on the mutual benefit of the parties, and noncoercive in getting agreement from both parents. Many parties are able to reach partial or full agreements during mediation.
6. Pretrial conference
It is typical for the parents and their attorneys to participate in a conference before the trial. The judge may suggest settlement at this pretrial conference; they will also establish rules related to the trial. You may find out your trial date at the conference, or the conference may occur two weeks prior to your trial, depending on your county.
A trial will occur if anything remains disputed. During the trial, your lawyer is able to question witnesses and present evidence to better establish your position. A final order is announced at the end of the trial by the general magistrate or judge. The terms in this final judgment, which must include a parenting plan and child support provisions if there are minor children involved, must be followed until all minor children are grown (unless modifications are made through the court at a later point).
Hearings & Conferences
In addition to what is described above, you may also have hearings. These will occur if you have a matter or issue that needs to be settled sooner rather than later. Generally, hearings are scheduled if a party files a motion asking for a temporary order from the court. The time-sharing schedule during the case, safeguarding from domestic violence, and other issues can be resolved through a temporary order.
Case management conferences will also occur. These conferences are not for orders or motions but case administration. Basically, the case management conference allows the judge or general magistrate assigned to your case to get an update on the status of your case and deal with any issues that arise, such as disputes over discovery, bad behavior by the parties or other disagreements.
Getting Help with Child Custody & Divorce
Divorce and custody cases can be incredibly stressful. Beyond helping you understand how the process works, a caring and highly effective attorney can explain child custody options in divorce and get you the best possible outcome. At Golden Key Law, we pride ourselves on having the experience and passion you need in legal representation. Contact us today to schedule your free consultation.