Does My Child Have A Say In Custody?

So, you are thinking about divorce. You, like many parents, may wonder whether your child has a say in the custody (also known as time-sharing) schedule. Depending on your child’s age and maturity level, your child might have have some input in what your timesharing schedule should look like.  However, a child under the age of 18 does not have the final say in a time-sharing schedule.

How Your Child Can Have A Say In Custody

Whether your child has a say may depend on whether you choose to litigate your case, or instead, participate in alternative dispute resolution like collaboration or mediation. In most litigated cases, a judge will not allow a child to participate in the proceedings. However, if you proceed with collaborative practice or mediation, your child may be able to participate if you and your spouse agree. If so, your child may attend a portion of the mediation or collaborative meeting. The mediator or collaborative facilitator will help determine the appropriate forum for the child to express his wishes and whether you and your spouse should be present.

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Child Custody

Custody: What Does The Law Consider?

Florida Statute § 61.13 lists the factors that the law will consider when developing a child custody, also known as time-sharing, schedule. One major factor is whether you will encourage a close and continuing relationship between the children and the other parent. The law considers your histories and personalities. Section 61.13 examines whether you will be reasonable when changes are required. The law also considers your ability to keep each other informed regarding important matters regarding the children. Florida law frowns upon parents who disparage the other in front of the children or bring the children into their disputes.

Parental Responsibility and Child Custody

Section 61.13 also discusses parental responsibilities and whether third parties will have decision-making authority. For example, if you work eighty hours a week, it may not be realistic for you to have custody the majority of the time. Another consideration is whether you will be able to participate in the children’s school and extracurricular activities.

Another factor is whether you have demonstrated the capacity and disposition to determine, consider, and act upon the needs of the children as opposed to your own needs or desires.

It is important to maintain stability as much as possible for the children.  Accordingly, the law considers the length of time the children have lived in a stable, satisfactory environment. Often times, if a temporary schedule is going well, the law suggests that it may be best to keep that custody schedule in place, especially if the child is tied to that home, school, and community.

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When Will I Get to See My Children?

Has your spouse petitioned for divorce and is now keeping your children from you? If so, you are likely wondering when you will get to see your children. There are several scenarios that could affect when you will be able to see your children.

Traditional Litigation Approaches

If your spouse simply refuses to allow you to see your children, and there is not yet a court order in place governing when each parent has time with the children, you may have to wait a few months before you see them. Of course, you have just as much right to your children as your spouse. But if your spouse is refusing you access, it likely isn’t in your children’s best interests to force the issue and cause an altercation. Depending on your situation, you may need to move for an emergency hearing to have the judge decide temporary timesharing as expeditiously as possible. Even in situations where a parent is denying the other parent access, a judge may require that parties mediate before allowing a temporary relief hearing to be set.

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Will I Get Custody of My Kids?

Every parent going through a divorce fears that they will not receive sufficient time or custody with their children. For parents who are used to seeing their children whenever they please, the thought of a third party ordering a schedule by which they have to abide can be nerve-wracking.

Traditional Divorce Court – Judge Decides Custody

If you decide to litigate your divorce in court, you will leave your destiny to a judge who only receives a snapshot glance at your life and parenting abilities. Outside factors will impact your case like the attorneys’ trial abilities, the mood and beliefs of the judge who is assigned to your case, the opinion of the experts which may be determined by which party is paying him, and how the parties and witnesses present themselves in court.

So how do you ensure a positive result in your case? Keep the decision in your own hands. Divorces do not have to occur in court, and actually, most do not. There are several courtless divorce options that are available that leave these important decisions to you and your spouse.

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Gary Direnfeld on Sole Custody

Video: Do You Really Need “Sole Custody?”

In my Tampa office, parents come to me all of the time and say they want “sole custody.”  Maybe they are having an argument with the other parent.  Maybe they just don’t get along.  So parents figure that the solution is to be the only one to have decision making authority over their child.

In the video below, social worker Gary Direnfeld challenges the assumptions behind requests for sole custody.

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Protecting Your Children from High Conflict Divorce

Divorce court here in Florida is a terrible way to resolve disputes.  Divorce litigation is an adversarial proceeding where husband is pitted against wife, mother is pitted against father.

And it is the children who end up suffering the most.

But don’t take my word for it.  Tampa psychologist Stephanie Moulton Sarkis writes about the consequences of high conflict divorce on children:

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Video: What Is A Collaborative Child Specialist?

Collaborative family law is a process that can be tailored to your family’s specific needs.  In all collaborative cases, issues related to divorce are discussed peacefully and respectfully in private conference rooms rather than confrontationally in public courtrooms.  Each spouse has their own attorney – who focuses exclusively on helping his or her client reach an out-of-court agreement – on whom the spouse can rely to provide advice and guide them throughout.

Oftentimes, experts are brought into the collaborative process so that the clients can reach a comprehensive agreement that deals not only with legal issues, but also emotional and financial resolutions.  Experts end up making the process much more efficient by being able to handle issues far more quickly than attorneys are able to.

One option that families may want to consider is whether to bring in a child specialist.  The short video after the jump, produced by Cypress Collaborative Divorce, discusses the role of the child specialist.

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Are Florida Divorce Courts Anti-Dad?

Over the past few years, there has been a movement to overhaul the alimony and child custody laws of Florida and other states.  This is because husbands and fathers have felt like they are under siege in the family law court system.  They have a glimmer of hope that, if only the laws were changed, then maybe they could get the respect and dignity that they deserve when entering a courtroom.

Map of Florida Circuit Courts

So this bring up a fundamental question:  Are Florida’s family law courts anti-father?

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Sample Christmas Custody Schedules

If you are divorcing in Tampa Bay and you have children, Florida law requires that a parenting plan be created.  The parenting plan outlines parental responsibility (decision-making authority) along with a time-sharing (custody) schedule.

The time-sharing schedule should not only address where the children stay during the school year and in summer months, but also how holidays, such as Christmas, are to be handled.

Below are some sample Christmas time-sharing schedules:

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Sample Florida Child Custody Schedules

In each Florida family law case (such as divorce or paternity) that involves the custody of a child, Florida law requires that a parenting plan be established.  One of the most important elements of a parenting plan is the child custody schedule, now known as a “time-sharing” schedule.

Family Law Tip:  You should never let a judge decide your child’s time-sharing schedule.  A judge does not know your family dynamics and bases such decisions on very limited information, and usually the judge is seeing parents, especially divorcing parents, at the worst time in their lives.  Instead, you and your co-parent should use a private form of dispute resolution, such as collaborative family law.

As I tell clients who come to my Tampa office, there are many different types of time-sharing schedules.  Below are some samples provided by the 12th Judicial Circuit (which includes Sarasota and Manatee Counties).  The parent who is listed in a box is the one whom the child will be staying with overnight:

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