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Best Interest Criterion in Child Custody

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The Gainesville Family Law Attorneys of the Law Office of Alba & Yochim P.A. represent clients in child custody matters in Alachua, Lake, Marion and surrounding counties. In Florida, custody determination are based primarily upon the best interest criterion set forth by statute. However, the court may also consider all of the factors affecting the welfare and interests of the particular minor child and circumstances of family, including but not limited to the best interest criterion. Consequently, there is much judicial discretion afforded to the court in its decision making process. In other words, the statutory criterion are guidelines, but not necessarily the only factors to be considered, for purposes of:

    • Establishing or Modifying Parental Responsibility; and
    • Creating, Developing, Approving, or Modifying a Parenting Plan, including a time-sharing schedule

Keeping in mind that the court need not make a written finding regarding each statutory factor independently, but must make a finding that the determination reached serves the best interests of the children, the statutory guidelines for the Best Interest Criterion set for the by Florida statutes, followed by explanation/examples of each are as follows:

Factor #1: Facilitation & Encouragement

“The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required.” See, Fl. Stat. 61.13(3)(a)

Examples favoring parents as to this factor include, the ability and willingness to of each parent to effectively communicate and work together; abide by orders of the court and terms of parenting plan; reach compromise when necessary; nurture the child’s bond with the other parent; support the child’s ongoing relationship; and/or ensure that co-parenting is a positive and healthy experience for the child. Examples weighing against a parent include failing to allow the child to visit with the other parent; keeping information about the child secret (i.e. pregnancy, birth, child’s whereabouts); failing to include the other parent in important events involving child (i.e. baptism, graduation); cutting short scheduled visitations; engaging in a deceptive and continuous course of conduct intended to thwart the child’s relationship with the other parent; and/or doing anything likely to undermine the relationship naturally fostered by interaction with the child.

Factor #2: Division & Delegation

“The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.” See, Fl. Stat. 61.13(3)(b)

The role that each parent will play in carrying out the obligations and duties of parenting, as well as decision-making for the child, taking into consideration the role and involvement of other persons as well. The court may consider the work schedules and other obligations of each parent, and the manners in which these may impact a parent’s ability to perform task without the need for assistance from others such as daycare providers, friends or relatives (i.e. caregiving or transporting child to /picking child up from school/activities/appointments). In general, the more time a parent can actually spend with the child, the better the chances of this factor being weighed in favor of a parent. This factor is a key component to the creation, development, and court’s approval of parenting plans.

Factor #3: Selfless and Altruistic Approach to Parenting

“The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent.“ See, Fl. Stat. 61.13(3)(c)

The willingness and ability of each parent to put aside their own differences, as well as self-interests, and focus solely on what is best for the child. In other words, do the prior actions of a parent show that they have the desire and capacity to practice selfless parenting on a continual basis? Can the parents avoid conflict and compromise when and if necessary for the purpose of ensuring the child’s well-being? Prior cases have weighed this factor against a parent who showed indifference, lack or concern, or periods of non-involvement, in the child-rearing process. In addition, the court may also consider events that took place during pregnancy, such as where a mother engages in behavior that may harm the child (i.e. smoking/drinking while pregnant), or where a father, expresses feelings that he does not want a child and his words and actions towards the pregnant mother demonstrate this.

Factor #4: Stability, Continuity, Permanency

“The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.” See, Fl. Stat. 61.13(3)(d)

The location, time period, and nature of the child’s living arrangements prior to the family law proceeding, and the impact on the child in the event change were to occur. However, note that the court generally cannot base the child’s stability solely upon the actual dwelling itself. In other words, in cases involving a divorce, where one parent is unable to keep the marital home due to financial reasons, this in and of itself should not be determinative as to physical custody. On the other hand, where one parent is awarded the marital home, decisions over the child’s (primary) residence will not be automatically limited or excluded, as to the other parent. Common considerations include the current and/or proposed residences of the parent, whether a change in schools may be required, and in cases of older children, sometimes even the child’s preference (see factor #9).

Factor #5: Residential Distance between Parents

“The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of either parent with a child.” See, Fl. Stat. 61.13(3)(e)

This factor is particularly important in determining the time-sharing schedule where the parents reside a substantial distance from one another. In some cases, it may be more appropriate to order annual or bi-annual rotating time-sharing. In prior cases, the court have been reluctant to find that it would be in child’s best interest to require a school-age child to switch school environments in the middle of the year, or rotate schools each year based upon each parent’s residence. Previous case law has identified factors which suggest that a rotating parent may be in the child’s best interest if: (1) the child was older and mature, (2) the child was not yet in school, (3) the parents lived near each other, (4) the child preferred rotating custody, (5) the rotation would not have a disruptive effect on the child, (6) the periods of time spent with each parent were reasonable, (7) the periods of custody were related to divisions in the child’s life, such as the school year, and (8) severe acrimony and ill-will existed between the child’s parents.”) See, Bainbridge v. Pratt, 68 So.3d at 313 (Fla. 1st DCA 2011); see also Schwieterman v. Schwieterman, 114 So. 3d 984 (Fla. 5th DCA 2012)

Factor #6: Moral Fitness

“The moral fitness of the parents.” See, Fl. Stat. 61.13(3)(f)

This is often shown through witness testimony. It is important to note the difference between moral issues that affect a child’s welfare, as well as morality in the objective versus subjective sense. For example, a parent’s alleged adulterous activity should not be taken into consideration where such indiscretions do not have any bearing on the child’s welfare. The court may consider a parent’s dating or cohabitation choices, however, in order for this to weigh against a parent, the other parent must present evidence demonstrating a connection between the conduct and the harm to the child. (i.e. where a parent’s pattern of partnering with others who engage in unlawful and questionable activity result in numerous residential/school changes or lack of continuity and stability). In other words, the conduct in question must have a direct effect or impact upon the children. Examples supporting good moral character include evidence of a parent’s truthfulness, trustworthiness, and reliability, as well as their propensity to relay good moral skills to the child (i.e. teaching the child to pursue their goals in an honest and proper manner). Examples negating good moral character include falsification of records, providing false oaths, teaching child to seek their goals by lying and deceiving, engaging in a pattern of partnering with others who engage in unlawful and questionable activity, where such relationships may be harmful to the child.

Factor #7: Parental Health

“The mental and physical health of the parents.” See, Fl. Stat. 61.13(3)(g)

Each parent’s capacity to provide adequate care for the child, and whether issues of mental or physical health may inhibit this capacity, such that it poses a potential parenting impairment. Common forms of evidence supporting or negating claims of health-related impairment include prior medical history/medical records; current evaluations (court-ordered or self-obtained); witness testimony (expert/character). In general, the court will assess the manner in which a parent’s health has affected, currently is affecting, or may affect a child in the future (i.e. chronic illness, terminal illness, lapses in treatment, failure to take necessary medication, major surgeries). For more on this topic, see ‘Parental Medical Issues in Custody Matters.’

Factor #8: Child’s History

“The home, school, and community record of the child.” See, Fl. Stat. 61.13(3)(h)

This is often evaluated in conjunction with other factors, such as #4, which deals with stability and continuity, or #19, which deals with the child’s developmental needs. The child’s age can also play a critical role in the court’s assessment of this factor. For example, an infant or toddler will generally have little or no record, whereas an older child generally will. In prior cases, the court has assessed whether the child is performing satisfactorily in their current environment, and whether altering this would be beneficial or problematic for the child. In addition to and/or in conjunction with educational, disciplinary, behavioral, medical, and sometimes even juvenile delinquency/criminal records, the court may also consider testimonial evidence.

Factor #9: Child’s Preference

“The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.” See, Fl. Stat. 61.13(3)(i)

For more information on this specific factor, see ‘Child’s Preference in Custody Matters.’

Factor #10: Parental Involvement

The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to, the child’s friends, teachers, medical care providers, daily activities, and favorite things.” See, Fl. Stat. 61.13(3)(j)

In circumstances where a parent has had little or no involvement in the child’s life, this factor, in and of itself, may be critical to the court’s analysis. However, more commonly, this factor is assessed in conjunction with other factors, such as with factors #3, #11, #15, #16, as discussed herein. It can be helpful for parents to consider evidence that may prove or disprove a parent’s:

  • Familiarity, or lack thereof, with the child’s life, including aspects such as:
    • Education (school, teachers, special needs of child)
    • Health (medical history, medical providers, medication, other needs)
    • Lifestyle (daily routine, friends, social/recreational activities, child’s likes/preferences)
    • Ability and likelihood, or lack thereof, that a parent will acquire information pertaining to the child when necessary, whether from child or through the other parent;
    • Overall desire, or lack thereof, to be involved in the child’s life, and do what is necessary to remain involved on a continual basis
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Factor #11: Consistency

“The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, and daily schedules for homework, meals, and bedtime.” See, Fl. Stat. 61.13(3)(k)

While it is a well-known fact that children with a stable and consistent day-to-day routine benefit cognitively, behaviorally, and developmentally, this is not to say that the other parent’s time with the child need always to precisely mirror that of the other parent. However, the parents be able to agree upon and adhere to certain routine activities, particularly those which are critical or absolutely necessary to the child’s well-being. For example, where one parent’s work schedule significantly interferes with the child’s bedtime or educational needs, and the other parent’s does not, the court may find such inconsistencies to favor the parent that can provide a routine that is both consistent and most suitable for the child. (i.e. the child has to be woken up in middle of night to be picked up from caregiver).

Factor #12: Practicability of Parental Communications

“The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child.” See, Fl. Stat. 61.13(3)(l)

Again, this factor, too, may be considered in conjunction with others. In some cases, orders of the court regarding parental contact may hinder the ability for parents to effectively communicate, such as with those involving domestic violence. In other cases, there may be ongoing or continued disputes that cause general communication issues. It is helpful for parents to show that they have the ability to communicate, and that they have agreed upon a manner that will allow them to do so (i.e. email or texting as opposed to telephone or face-to-face contact). However, parents must also show that they can compromise, and when necessary ‘agree to disagree,’ when one parent’s resolution to a problem is more suitable for the child. Finally, parents must do more than say they will adhere to terms of agreement, they must actually be willing to abide by agreed terms, particularly those that have a major impact on the child’s life. For example, if the parents agree that they will share educational/discipline/medical records and/or honor each other’s reasonable disciplinary measures, they should abide by such arrangements.

Factor #13: Domestic Violence or Child Abuse

“Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect, regardless of whether a prior or pending action relating to those issues has been brought. If the court accepts evidence of prior or pending actions regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect, the court must specifically acknowledge in writing that such evidence was considered when evaluating the best interests of the child.” See, Fl. Stat. 61.13(3)(m)

The court shall order shared responsibility unless such arrangement would be detrimental to the child. Evidence that a parent has been convicted a misdemeanor in the first degree or higher involving domestic violence, or parent’s incarceration establishes grounds for termination of parental rights, creates a rebuttable presumption as to detriment. If a parent, upon being notified of such presumption, fails to rebut it, the court is precluded from ordering shared responsibility, including time-sharing for the father. Parents should note that a conviction need not occur, and that the court may consider evidence of issues of violence or abuse associated with parent or child. However, allegations of this nature, including any assertions of detriment, must be supported by credible evidence. For more on this topic, see ‘Presumption of Unfitness in Child Custody.’

Factor #14: Dishonesty in Domestic or Dependency Matters

“Evidence that either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect.” See, Fl. Stat. 61.13(3)(n)

Prior instances of dishonesty, whether in a domestic violence, or child abuse related matter, if the court finds such evidence to be credible, can have a profound impact on custody determinations. Parent should keep in mind two key considerations. First, credibility is crucial, and when a parent has been untruthful in the past, it undermines their credibility in general, particularly with assertions or claims regarding issues in dispute. Second, prior dishonesty can also affect the court’s assessment of moral fitness (factor #6), which, again, if proven to be true, can result in two best interest factors being weighed against them.

Factor #15: Parental Responsibility prior to and during Litigation

“The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties.” See, Fl. Stat. 61.13(3)(o)

Put simply, who did what prior to the commencement of a custody proceeding, and who did what during the litigation process? Prior cases have considered the necessity and stated reasons of one parent’s reliance on third parties, and whether such reliance was significant, ongoing, unnecessary, worrisome, inconsistent with testimony, as well as to what extent others may be called upon to care for the child in the future. Because the court will consider a parents actions both before and during litigation, it is important for parents to know that in some cases, a parent can take measures that can reduce the impact of prior actions that would have caused this factor to be weighed against them, by taking a more active involvement during litigation and demonstrating that such involvement and interest in the child’s life will continue after litigation. On the other hand, where one parent has had very little, or no involvement whatsoever, prior to the commencement of proceedings, that parent may have difficulty in overcoming not only the negative weight of this factor, but others as well.

Factor #16: Participation & Involvement

“The demonstrated capacity and disposition of each parent to participate and be involved in the child’s school and extracurricular activities.” See, Fl. Stat. 61.13(3)(p)

The court will often make a comparison between the frequency and regularity of each parent’s involvement in the child’s life with matters such as:

  • Meeting with school teachers or other school officials, whether for educational, disciplinary, or other purposes (i.e. attending open houses, participating in school events, volunteering);
  • Assistance with homework; ensuring that schoolwork and assignments are completed properly and on time;
  • Transporting child to and from extracurricular activities, as well as attending events related to such activities;
  • Overall desire to play an active and integral role in all aspects of the child’s life, as demonstrated by ongoing and continuous participation;
  • What the child has become accustomed to, and the impact that deviating from this may have on the child

Factor #17: Substance-free environment; Safe environment

The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse.” See, Fl. Stat. 61.13(3)(q)

Whenever one parent alleges a potential parenting impairment due to a substance abuse issues, providing the court with witness testimony, both expert and character, can play a key role in either supporting claims or defending such allegations. While overcoming issues of prior substance abuse, based upon grounds of recovery, can be difficult, it is certainly possible. In Tullier v. Tullier, 98 So.3d 84 (Fla. App., 2012), the court affirmed its order modifying custody from supervised to unsupervised time-sharing, where the father had undergone “intensive therapy and counseling and was ready for a more regular parental access schedule with his minor children,” where father “presented numerous fact witnesses and two expert witnesses,” who included: 1) A licensed mental health counselor, who testified that Former Husband did not have a relapse in his addiction and is continuing with therapy/counseling; 2) A licensed family therapist and mental health counselor who conducted twenty-eight therapy sessions with Former Husband, stated that Former Husband should begin unsupervised visitation; 3) An employee from the facility that supervised his visitation, who explained that Former Husband did not have any problems with his children during his supervised visitations; 4) Former Husband’s pastor, who spoke favorably about Former Husband’s participation in counseling and therapy at the church; 5) another member of Former Husband’s group therapy sessions, who verified Former Husband’s high attendance and regular participation during therapy sessions; and 6) Former Husband, who testified on his own behalf.

Factor #18: Protecting Child during Legal Resolution of Custodial Disputes

The capacity and disposition of each parent to protect the child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child.” See, Fl. Stat. 61.13(3)(r)

Parents must keep in mind that any discussions, documents, or comments shared with the child can potentially come into play as evidence in a custody proceeding. In some cases, the judge may speak with the child (typically in chambers, outside of the courtroom and/or in the courtroom in cases where an older child is testifying.) Also the child may share what one parent has said about the other parent and/or pending litigation with others, such a guardian ad litem (if one was assigned), a teacher, a doctor, a family friend, etc., and that evidence may be introduced, whether through testimony or on in records, reports, or other evidentiary documents. Consequently parents must refrain from speaking badly about the other parent in the presence of the child, and any discussions regarding parental disputes and custody issues should remain limited as possible. While in many, in some cases, it may be necessary to inform the child with information pertaining to the litigation, parents must limit such information to the extent necessary, and depending on the child’s age, experience, mental capacity, and intelligence.

Factor #19: Developmental Needs

“The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs.” See, Fl. Stat. 61.13(3)(s)

Every child is unique, and therefore the court must assess the individual circumstances of each child to determine their precise needs, and what custodial arrangement will work best for that particular child. For example, with very young children, the mother may be breastfeeding, and therefore, the child may need to remain in the primary physical custody of the mother during this stage. In some cases, the child may have special needs, and therefore the court must evaluate which parent is better able to meet that child’s needs. (See, ‘Children with Special Needs in Custody Matters‘). Prior cases have also considered which parent has continuously been there to care for the child’s needs throughout their young lives, as compared to the parent who had devoted a substantial amount of time with the child, but when it was convenient and/or opportunistic to do so.

Factor #20: OTHER

“Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.” See, Fl. Stat. 61.13(3)(t)

This factor is essential a ‘gap-filler- in the best interest criterion, which allows the court to use its discretion in considering any other aspect, element, dynamic, or matter pertaining to the child’s life that either affects or may affect the child’s welfare or interests.

If you are a parent that is involved in a child custody proceeding, or simply have questions regarding the custodial process, including the manner by which the court will evaluate and determine what is best for a child, we encourage you to contact Alba & Yochim P.A., and allow our experienced attorneys to explain your legal and parental rights. Whenever dealing with custody matters, parents should keep in mind two things. First, due to the discretionary authority permitted to judges in evaluating and ruling upon custodial matters, it is far more beneficial to select an attorney that frequently practices in the county* where the matter is to be heard, and that is familiar with the manner in which a particular judge has decided prior cases.

Second, once an initial determination regarding custody has been reduced to a court order (and the time for appealing such decision has passed), it is much more difficult to obtain a modification in the future, as it requires a substantial, unexpected, and material change in circumstances. Let the Gainesville-Ocala Law Office of Alba & Yochim P.A. help you protect your rights and protect your children.

*We service the following counties: Alachua, Marion, Lake, Gilchrist, Levy, Baker, Dixie, Putnam, Clay, Bradford, Union, Columbia, Lafayette, Suwannee, Hamilton.