Who gets custody of the kids is certainly one of the more emotionally challenging parts of the divorce process and it may also present legal challenges that require a good lawyer to make sure your side of the story is heard with crystal-clear clarity. With that in mind, it’s important to understand what judges look for inchild custody cases.
The Best Interests of the Child
The one factor that supersedes all others is the best interests of the child. That’s a broad starting point, but it includes two important presumptions–the best interests of the child are presumed best served by stability and by spending time with both parents.
An example of how the need for stability might impact child custody could come through the property settlement. Perhaps both parents are equally capable in the parenting role, and each has a good relationship with their children. But one of the parents will be staying in the house that the family has been living in.
A judge might well conclude that primary physical custody be given to the parent who has the house, using the rationale that the children will benefit from continuing to live in the same house they always have during this period of upheaval in their lives. While the other parent still has visitation rights, a case for joint custody–one that would otherwise be very compelling–might have to be ruled out on the grounds of the best interests of the child.
Let’s consider another example–the marriage saw one parent primarily in a stay-at-home role. Now, after the divorce, the stay-at-home parent will need to move down the coast to Sarasota for a job opportunity. The family house is going to be sold, with the proceeds split between the spouses. What happens with child custody?
The spouse who is moving can make the case that stability for the children is served by being primarily with the parent who has been at home with them more frequently. The other spouse can make a compelling case of their own–that they are continuing to live in the children’s school district, even if the house is being sold.
Florida courts have a great deal of discretion in cases like these and every judge is different. What’s important to understand here is that the judge will not be deciding cases like this based on who is the better parent (because our scenario assumes both are reasonably capable), or even what’s fair to the parent. The judge will look squarely at the question of what serves the stability of the kids.
Is a Parent Unfit?
It’s not uncommon for one parent (or both) to feel that the other is unfit. A parent, wanting to protect their child, might be understandably concerned about the presumption that kids are best served by spending time with both parents. It’s important to emphasize that this presumption is simply a starting point for the court.
The court puts both parents on an equal playing field and then allows each spouse to make its case for why that presumption should be effectively overturned in the final settlement. Certainly, if a spouse has a problem with drugs or alcohol, that could overturn the presumption in favor of equal time. A spouse that has been abusive, be it physically, verbally or emotionally ,could see that presumption overturned. A spouse that is irresponsible, to the point of endangering the children, could have the presumption overturned.
But the spouse accused of being unfit starts with the benefit of the doubt. This is a concept used more frequently in criminal court than in civil matters like divorce, but it does apply here. The spouse seeking to deny or restrict custody rights faces the burden of proof in court. That spouse must demonstrate that spending equal time–or even overnight weekend visits–is something that is not in the best interests of the child.
Do the Kids Get a Say?
With the focus on the best interests of the child, do the kids themselves get a say? That depends. Florida is more flexible on this than many states. A common standard across the country is that a child must be 14-years-old before their desires can be taken into account. In Florida, a judge can hear out the child so long as the judge is confident in the child’s maturity, intelligence and that they have spent sufficient time with each parent to offer informed input. Florida courts have applied this by hearing out children as young as 10-years-old.K. Dean Kantaras understands the value of family and we know how important your children are to you. The fact Florida law allows judges considerable discretion in child custody cases makes it even more important that your case be laid out in an articulate manner and be rooted in a detailed understanding of the factors judges look at in child custody cases. Call us today at (727) 939-6113 or contact us online to set up an initial consultation.