Table of Contents
In this guide we will explore different aspects of child custody and how it can affect your family during a divorce. For more specific questions, it’s always suggested that you contact an attorney to get the proper advice for your case.
Disestablishing Paternity in Florida
Up until recently, a putative father who consented to paternity, but then subsequently discovered that he was not a child’s biological father didn’t recourse in Florida courts.
That changed with the disestablishment of paternity statute. Section 742.18 provides a man who discovers that a child is not his unknown to a mechanism to petition the court to disestablish the paternity.
The Second District Court of Appeals recently analyzed the statute in JCJ v. Florida DOR, Case No 2D10-4029. This was a child custody/paternity case out of Tampa, Florida.
In this case, the petitioner originally signed a consent of paternity at the hospital the day after the child’s birth. The consent was subsequently filed with the clerk of the court, effectively establishing paternity.
Later, the petitioner had a DNA test done, which conclusively showed the petitioner was not the father. The petitioner did not act as dad from that point forward.
Years later, the mother filed a child custody action against the petitioner. The petitioner countered with a petition to disestablish paternity. At a final hearing, the judge denied the petition to disestablish even though the petitioner had a DNA test done that showed there was a zero percent chance that he was the father.
Subsequently, he appealed. On appeal, the district court said the petitioner must include a DNA test within the petition starting the case that was taken within 90 days of the filing of the petition, unless the petitioner swears under oath that he did not have access to the minor child.
In the petitioner’s case, the trial court denied his petition because he wasn’t able to get a DNA test done until after filing the petition. But according to the DCA, this was not fatal to the father’s case because he didn’t have access to the child before filing the petition.
The DCA overturned the trial court’s denial of the petitioner’s request to disestablish paternity. The child custody ruling was reversed.
When You Need an Expert in Your Child Custody Matter
Expert testimony in a divorce or family law proceeding can be very expensive. With the custody of your child on the line, however, a qualified expert may be worth the investment. Psychologists, psychiatrists, and expert therapists provide a mechanism to present credible evidence to the judge regarding a child’s best interests that the rules of evidence may limit if coming from a lay witness.
Social Investigation of the Child
The judge can order a social investigation in any action where the parents cannot agree on the child custody agreement. Children are not able to testify in court absent good cause and court approval. Accordingly, determining what truly is in a child’s best interests at hearing based on the testimony of the parent’s and their friends and family can be problematic. A social investigation can provide the court with unbiased testimony on the issue of the children.
The court can order a social investigation on its motion or the motion of one of the parties. The investigation can be performed by court staff, a licensed child placing agency, psychologist, social worker, marriage counselor, family therapist, or mental health counselor.
The parties can agree and stipulate to the expert to perform the investigation. If the parties cannot agree, then they can submit the issue to the Court to Decide.
Psychological or Psychiatric Investigation of the Parents
Relatedly, the parties can request that the court order a psychological investigations of the child or each other. The mental health of the parties is an issue in child custody matters pursuant to statute. There are requirements under this statute that the judge must meet to order the investigation that no not exist in the social investigation statute.
Concerned that one of the parents is abusing alcohol or a controlled substance? Then it may be appropriate to move the court to order substance abuse evaluation and treatment. In certain cases, you may need to ask the court to order the other party submit to a hair follicle test to “prove” drug use/abuse.
Florida Judges Do Not Presume Who get’s Child Custody, and Neither Should You
Not long ago, Florida courts presumed that a child should be placed with the mother after a divorce. The law has changed. Now, Florida law specifically states that dad’s and mom’s are both to be given the same consideration when creating or determining child custody.
While the law is clear, judicial application of the law differs from county to county and judge to judge. The judiciary in Pinellas County has the reputation of being more traditional in child custody determinations; whereas the Hillsborough County, Florida judiciary has the more liberal reputation of embracing the law requiring equal consideration of both parents in child custody matters.
Regardless of the counties’ reputation, the law is clear: Both parents will be on equal footing when litigating in child custody in front of the judge.
Why is this Important?
Simply put, the perception among fathers and mothers as to what the ultimate child custody determination would be is often not realistic.
I frequently consult with fathers who are convinced that the mother is in control of the situation. They fear acting against the mother’s wishes, regardless of what is in their or their children’s best interests, for fear that the mother will limit or restrict the father’s time with his children.
Alternatively, I consult with mother’s who are convinced not only will they get the timesharing they request, but that they must seek majority timesharing.
The problem, then, is that both mom and dad often have incorrect preconceived notions of what the law requires. The parents then make less than optimal decision regarding the child custody they seek in Court.
What Really Matters to Judges
Judges, regardless of the county, care only about what is best for the child. And so should you.
Accordingly, know and embrace the law, and throw out any presumptions. Determine what is best for your children. Florida child custody templates can be helpful, but should never control your decision.
Do both you and the other parent work? Do you work inconsistent hours? Does one parent travel for work? Then consider thinking outside the box. Perhaps a rotating custody 50/50 arrangement is appropriate in your situation. Perhaps not. In any case, do your homework, and put the needs of your child ahead of any old school presumptions.
Five Things Not to do When Your Child Custody Case is Pending
1. Do NOT try to move out of the jurisdiction with your kids.
The big one first: You absolutely cannot move out of the jurisdiction with your children without written consent from the other party. Florida law requires that you take specific steps if you wish to move with your kids. If you do not do it, you risk being held in contempt, losing substantially custody with your children in the final hearing, and even having an order entered by the judge that will order the sheriff in your county to pick up the children and deliver them back to their home jurisdiction.
2. Do NOT keep the other parent from seeing your children.
When the judge is deciding on the appropriate timesharing plan for your kids, they will make a written finding regarding which parent does a better job of encouraging access for the child with the other parent. Florida considers it vital that the child have access to both parents. Therefore, do NOT be the parent that restricts access to the other individual.
3. Do NOT get your kids involved in your drama.
Too often, frustrated parents start complaining about their situation to the children. Mom may complain to the children that money is tight because Dad is not supporting his family pending a temporary motion for support. Or Dad may tell his children how he wishes he could see them more, but Mom will not let him.
I have witnessed cases where a parent vents all of his/ her frustrations with the other parent on the children. Months into the divorce process, the children are in therapy. Each parent blames the situation on the other parent. The reality is that divorce is stressful on its own for the children. The stress becomes magnified by parents who get the children involved in the drama. Do NOT be that parent
4. Do NOT treat your kids as pawns to limit/remove child support
It is perfectly reasonable for a parent to do battle over timesharing because that parent truly needs more days per month with his child. It isn’t reasonable for that parent to request more timesharing in an attempt to work out less child support.
At the end of the day, this tactic rarely works. If a parent is leveraging to minimize child support, then that parent truly is adverse to spending money. That parent will then fold at the prospect of spending substantial sums of money on child custody litigation.
5. Do NOT let your anger result in a domestic related incident
Child custody and divorce proceedings are exceptionally trying on both parents. Do NOT let your anger boil over into a domestic related physical altercation. This is the quickest way to lose all unsupervised timesharing with your child. Many parents have had to work for months or even years to regain the timesharing they lost because of a moment of anger.