Transcript Child Custody

Child Custody
Part 2 – The Custody
Decision, Modification,
and Relocation
From Property to Person (almost)
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Pre-19th Century Common Law: Children
were the property of their fathers
19th Century: Development of the “Tender
Years” Doctrine and custody awards of
younger children to mothers
1960’s and 70’s: “Best Interests of Child”
becomes dominant standard
1970’s and 80’s: Joint Custody laws enacted
Sole vs Joint Custody
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Joint Custody becoming more common as
society changes and fathers play a greater
childrearing role in intact families which they
expect to continue post-divorce
Some states have a presumption of joint
custody, but that does not mean a 50-50 split
of the child’s time
Joint Legal vs Joint Physical
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Joint Legal Custody
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More common than Joint Physical
Shared decision-making, not necessarily different
from sole custody in terms of time spend with
each parent
Joint Physical Custody
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Still a minority of cases
Child spends substantial, but necessarily
precisely equal, time with each parent
Mix and Match
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Can have joint legal without joint physical
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Most common arrangement
Can have joint physical without shared
decision making on major issues (joint legal)
Can have demarcated joint legal custody
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Certain types of decisions (medical, religious,
educational) assigned to one parent or the other)
“Nesting” Arrangements
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Special type of Joint Physical Custody
Children stay in primary residence and
parents rotate in and out
Works only where parties can cooperate at a
high level and can afford three separate
residences (father’s, mothers, children’s)
Doesn’t permit geographic mobility and
makes remarriage and additional children
difficult
Custody by Any Other Name
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Recent efforts to reduce the conflict inherent
to possessory (“fighting”) words like custody
and visitation
Alternate terminology:
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Parenting Plan
Parenting Time
Residential Time
Parental Responsibility (FL)
Custody Policy Statement (FL)
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“It is the public policy of this state to assure that each
minor child has frequent and continuing contact
with both parents after the parents separate or the
marriage of the parties is dissolved and to
encourage parents to share the rights and
responsibilities, and joys, of childrearing. After
considering all relevant facts, the father of the child
shall be given the same consideration as the
mother in determining the primary residence of a
child irrespective of the age or sex of the child.”
- Fla. Stat. § 61.13(2)(b)(1)
Custody (Parent Responsibility)
Presumption in Florida
“The court shall order that the parental
responsibility for a minor child be shared
by both parents unless the court finds that
shared parental responsibility would be
detrimental to the child.”
- Fla. Stat. § 61.13(2)(b)(2)
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Areas of Shared Parental
Responsibility (Joint Custody)
In ordering shared parental responsibility, the court
may consider the expressed desires of the parents
and may grant to one party the ultimate responsibility
over specific aspects of the child's welfare or may
divide those responsibilities between the parties
based on the best interests of the child.
 Areas of responsibility may include primary
residence, education, medical and dental care, and
any other responsibilities that the court finds unique
to a particular family.
- Fla. Stat. § 61.13(2)(b)(2)(a)
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“Rotating” Custody in FL
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Fla. Stat. § 61.121: provides that the Court may
order rotating custody if the court finds rotating
custody to be in the best interest of child after
considering:
– Child's age, maturity, and preference
– Length of each custody period;
– Disruptive influences created by alternating
custody schedule including distance between
residences, school, etc.
– Parent's attitude toward each other and how
attitudes might affect children.
Bests Interests of the Child?
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Influenced by two books written by Goldstein,
Freud (Sigmund’s granddaughter), & Solnit in
the late 1970’s
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Beyond the Best Interests of the Child
Before the Best Interests of the Child
These books placed great emphasis on what
has become known as “bonding” and the
concept of the “primary caretaking parent
Best Interests Defined?
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Set of statutory factors related to parenting
issues
Original statutes from Iowa and Minnesota
with approximately ten factors served as the
model for the rest of the country
Florida’s factors are found in Fla. Stat. §
61.13(3)
Florida Definition of “Bests Interests of
Child” – 13 factors
(a) The parent who is more likely to allow the child frequent and
continuing contact with the nonresidential parent.
(b) The love, affection, and other emotional ties existing
between the parents and the child.
(c) The capacity and disposition of the parents to provide the child
with food, clothing, medical care or other remedial care
recognized and permitted under the laws of this state in lieu of
medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory
environment and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed
custodial home.
(f) The moral fitness of the parents.
Florida Best Interests Factors
(continued)
(g) The mental and physical health of the parents.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court deems the
child to be of sufficient intelligence, understanding, and
experience to express a preference.
(j) The willingness and ability of each parent to facilitate and
encourage a close and continuing parent-child relationship
between the child and the other parent.
(k) Evidence that any party has knowingly provided false
information to the court regarding a domestic violence
proceeding pursuant to s. 741.30.
(l) Evidence of domestic violence or child abuse.
(m) Any other fact considered by the court to be relevant.
Interpreting “Best Interests”
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Factor (a) - The parent who is more likely to
allow the child frequent and continuing
contact with the nonresidential parent
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Not present in most original child custody statutes
Reflects growing concern about parents who
alienate children from the other parent
It placement as factor a reflects it importance in
the decision making process
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Factor (b) - The love, affection, and other
emotional ties existing between the parents
and the child.
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Custody cannot be awarded to resolve a party's
emotional problems. Miraglia v. Miraglia, 462 So.
2d 507 (Fla. 4th DCA 1984). Trial court’s concern
that mother would be suicidal if she lost custody
was improper factor.
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Factor (c) - The capacity and disposition of
the parents to provide the child with food,
clothing, medical care or other remedial care
recognized and permitted under the laws of
this state in lieu of medical care, and other
material needs.
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Smoking where child has asthma found to be an
issue, Thomas v. Harris, 634 So. 2d 1136 (Fla.
1st DCA 1994).
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Factor (d) - The length of time the child has
lived in a stable, satisfactory environment
and the desirability of maintaining continuity.
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If one parent is able to retain the marital home in
which the children have been raised, they may
have an advantage on this factor. Adair v Adair,
720 So. 2d 316 (Fla 4th DCA 1998)
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Factor (e) - The permanence, as a family
unit, of the existing or proposed custodial
home.
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Post-divorce remarriage or live-together
arrangements by one or both parents can
influence this factor depending on whether those
anticipated changes in the structure of the family
unit appear to be stable and long-lasting. Jacoby
v Jacoby, 763 So. 2d 410 (Fla 2nd DCA 2000)
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Factor (f) - The moral fitness of the parents.
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Focus on whether the parent's behavior has a direct impact
on the welfare of the child. Connection between the acts of
parent and impact on child must have an evidentiary basis
and cannot be assumed.
Mere possibility of harm to child from parent's conduct is
insufficient.
However, do not have to have proof of actual harm, past or
present. Maradie v. Maradie, 680 So. 2d 538 (Fla.1st DCA
1996); Dinkle v. Dinkle, 322 So. 2d 22 (Fla. 1975),
superseded by statute as stated in, Kuutti v. Kuutti, 645
So. 2d 80 (Fla. 4th DCA 1994)
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Factor (g) - The mental and physical health
of the parents.
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Merely contesting custody does not place a
parent’s mental health at issue sufficient to waive
privilege as to treatment records. Freshwater v
Freshwater, 659 So. 2d 1206 (Fla 3rd DCA 1995)
Where information about treatment is “vital to a
proper determination of permanent custody”, the
privilege must give way to the best interests of the
child. Critchlow v Critchlow, 347 So. 2d 453
(Fla 3rd DCA 1977)
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Factor (h) - The home, school, and
community record of the child.
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Evidence relating to grades, extracurricular
activities, sports, community involvement,
behavioral issues are all relevant to this factor.
Stamm v Stamm, 489 So. 2d 851, (Fla 5th DCA
1986)
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Factor (i) - The reasonable preference of the
child, if the court deems the child to be of
sufficient intelligence, understanding, and
experience to express a preference.
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This is not a dispositive factor standing alone.
Gaber v. Gaber, 536 So. 2d 381 (Fla. 3d DCA
1989).
Can be a very important factor for teens
But remember, there is no age at which a child
can “choose” which parent to live with.
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Factor (j) - The willingness and ability of each parent
to facilitate and encourage a close and continuing
parent-child relationship between the child and the
other parent.
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Not one of the original factors
Added, as with factor (a), out of concern for parents who
engage in alienating behavior such as the alleged but
unproven PAS
A pattern of denying or frustrating visitation may in come
cases constitute a substantial change of circumstances
justifying a transfer of custody. Williams of Williams, 676
So. 2d 493 (Fla 5th DCA 1996).
What is PAS? Does it Exist
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Parental Alienation Syndrome (PAS) was the
brainchild of Richard Gardner, Ph.D.
Whether PAS exists has always been
controversial
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Not sufficiently researched and documented to
constitute a true psychological syndrome
However, everyone involved in family law has
seen concrete evidence of alienating conduct by
parents
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Factor (k) - Evidence that any party has
knowingly provided false information to the
court regarding a domestic violence
proceeding pursuant to section 741.30.
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A component of alienating behavior is often false
allegations of domestic violence made to gain an
unfair advantage in custody litigation.
In those states that do not have this as an
expressed factor, the courts will consider this
under one of the other factors such as “moral
fitness” or “mental and physical health”
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Factor (l) - Evidence of domestic violence or
child abuse.
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The abuse need not be directed at the child or in
the child’s presence
There need not be proof of a criminal charge or
conviction
There need not have been a prior request for or
issuance of a domestic violence injunction
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Factor (m) - Any other fact considered by the
court to be relevant.
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A “catch all” for evidence that does not fit neatly
under any of the other factors
The factors are not intended to be exclusive, and
the court may consider anything it finds to be
helpful is deciding PRC (primarily residential
custody). Collins v Collins, 873 So. 2d 1261
(Fla 1st DCA 2004).
Findings on the “best interests’ factors
in FL (minority view)
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The case law does not require the trial court to
make specific findings regarding the designation of
primary residential parent (PRP). Such findings are
required in many other states to assist in appellate
review.
Belief is that detailed findings can often harm the
children involved.
However, the trial record should support a sufficient
basis. Bader v. Bader, 639 So. 2d 122 (Fla. 2dDCA
1994); Railton v. Railton, 639 So. 2d 189 (Fla. 2d
DCA 1994); Murphy v. Murphy, 621 So. 2d 455
(Fla. 4th DCA 1993); Duchesneau v. Duchesneau,
692 So. 2d 205 (Fla. 5th DCA 1997)
Separating Siblings (Divided Custody)
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Children in a family should not be separated
from one another absent the most compelling
of circumstances. Henderson v. Henderson,
537 So. 2d 125 (Fla. 1st DCA 1988); Arons
v. Arons, 94 So.2d 849 (Fla. 1957).
Half siblings not controlling. Munson v.
Munson, 702 So. 2d 583 (Fla. 2d DCA
1997).
Prompt Custody Decisions Required
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Timeliness of judge's decision is important
Where 14 months elapsed between trial and
oral ruling and 16 months before ruling
reduced to writing, new trial required.
Falabella v. Wilkins, 656 So. 2d 256 (Fla 5th
DCA 1995).
Parental Custody Agreements Not
Binding on the Court
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The Court may reject agreements or
mediated agreements where the terms are
not in the best interests of the children.
Feliciano v. Feliciano, 674 So. 2d 937 (Fla.
4th DCA 1996); Holland v. Holland, 458 So.
2d 81 (Fla. 5th DCA 1984).
Consistent with court’s role as parens
patriae on child related issues like custody,
visitation, and support
Tools to Assist the Court in Custody
Cases
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Guardian ad litem
In camera (in chambers) interview with child
Home Study or Investigation
Psychological Evaluation
Guardian ad litem (GAL)
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Attorney or Non-attorney with specialized
training and certification through a Guardian
Ad Litem Program
Represents the child’s best interests, not an
advocate for the child’s wishes (which would
be an attorney for the child)
May conduct independent investigation and
submit written report and recommendation
(20 days before hearing in FL)
Advantages and Disadvantages
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Adds a neutral third party whose only
allegiance is to the child’s best interests
GAL can conduct investigation that judge
cannot (visit home and school, speak with
family members and treating professionals)
Adds cost (if attorney) and complexity in
scheduling
Creates a “bidding war” between the parents
for the support of the GAL.
In Camera Interview of Child
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Purpose is primarily to determine if child is
mature enough to express a custodial
preference and to determine that preference
Must be recorded if requested by either party,
and failure to make a record of the interview
is reversible error
Advantages and Disadvantages of In
Camera Interview
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Allows child to express preference in less
threatening setting than if in open court in
front of parents
Many judges are not especially adept
interviewers of children, and may unwittingly
ask wrong or irrelevant questions that will
mask the child’s true preference
Home Study (Social Investigation)
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Court may order in any contested case, cost paid
by the parents
Study performed by qualified court staff, a licensed
child-placing agency, psychologist, clinical social
worker, marriage and family therapist, or licensed
mental health counselor (or DCF if parent is indigent
and court does not have adequate staff)
Written report with recommendations and factual
findings presented to court and counsel for each
party
Court may consider the report which will not be
excluded by traditional evidentiary rules
Psychological Evaluations
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Psychological evaluations authorized by:
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Fla. Stat. § 61.20 (“good cause” must be shown
and mental condition must be in controversy)
Fla. R. Civ. P. 61.360 (psychological evaluation
may be ordered as part of social investigation)
If done for court evaluation purposes, there is
no privilege associated with the evaluation
Advantages and Disadvantages of
Psychological Evaluations
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Much more in-depth look at family functioning and
relationship issues than with other types of
evaluations
Good screening for mental health problems that are
impacting parenting and suggestions for resolving
those problems through treatment (medication or
therapy)
Can take many months to complete
Cost can be thousands of dollars
Some judges merely rubber-stamp evaluator’s
recommendation without independently reviewing
the evidence
Custody Modification
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There are facts concerning the welfare of the child that the
court did not know at the time the decree was entered, or
There has been a change in circumstances shown to have
arisen since the decree.
Promotes the finality of the judicial determination of the custody of
children. After the trial court enters the original final judgment
decree, it is res judicata of the facts and circumstances at the
time the judgment became final.
– Presumption in favor of the reasonableness of the original decree.
– Presumption may be overcome when changes in circumstances
have arisen which warrant and justify modification of the original
decree.
– No requirement to show detriment to child in order to obtain
modification (reverses prior case law)
Wade v Hirschman, Florida Supreme Court No. No. SC04-1012,
May 26, 2005
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What usually isn’t enough
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Fact that parents cannot get along is not a substantial or
material change in circumstances which without more justifies a
change in custody. Zediker v. Zediker, 444 So. 2d 1034 (Fla.
1st DCA 1984).
A primary residential parent's decision to relocate "in the
absence of other compelling circumstances does not in and of
itself support a change of custody." Botterbusch v.
Botterbusch, 851 So. 2d 903 (Fla. 4thDCA 2003).
Children's changing desires, preferences and interests as a
result of growing up do not, standing alone, create a substantial
change of circumstances. Finney v. Giddens, 707 So. 2d 856
(Fla. 2d DCA 1998); Gibbs v. Gibbs, 686 So. 2d 639 (Fla. 2d
DCA 1996).
Process/Discretion for Modifications
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Must be based upon pleadings and a
properly noticed hearing. Gelato v. Basch,
658 So. 2d 664 (Fla. 4th DCA 1995).
Court has less discretion in deciding
modification than in deciding initial custody.
Dobbins v. Dobbins, 584 So. 2d 1113 (Fla.
1st DCA 1991).
Relocation Cases – Today’s Custody
Battleground
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Fla. Stat. § 61.13(2)(d) replaced prior case law
Most state statutes and case law (including FL) are
based on the standards in the New Jersey decision
in D’Onofrio v D’Onofrio, 365 A. 2d. 27, aff’d 365 A.
2d. 716 (1976)
No presumption in favor of or against a request to
relocate when a primary residential parent seeks to
move the child and the move will materially affect the
current schedule of contact and access with the
secondary residential parent
Statutory Relocation Factors
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Whether the move would be likely to improve the general
quality of life for both the residential parent and the child.
The extent to which visitation rights have been allowed and
exercised.
Whether the primary residential parent, once out of the
jurisdiction, will be likely to comply with any substitute visitation
arrangements.
Whether the substitute visitation will be adequate to foster a
continuing and meaningful relationship between the child and
the secondary residential parent.
Whether the cost of transportation is financially affordable by
one or both parents.
Whether the move is in the best interests of the child.
Trends/Problems in Relocation
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Some states enacting intra-state, not just inter-state,
relocation restrictions (so-called 75 or 100 mile rules)
As with custody, judges’ attitudes and values come
into play as many of these cases involve remarriage
or job issues
Most judges will say that these are their most difficult
cases because it is “winner take all” where in
custody there are compromise options such as joint
or rotating custody if both parents are good custodial
prospects