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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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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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