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Does my child’s preference matter in my family law case?


Many clients believe they can prove up their custody case simply by having their child voice their preference to the judge – either in person, or perhaps through a writing. After all, not only does this appear to be the easiest way to cut through all of fat, but as parents, you simply want what your child wants. Unfortunately, a child’s preference is not determinative. In other words, just because your child wants to live with one parent over the other, does not mean this will be the sole factor a Florida court will consider. In fact, contrary to common conception, it’s very rare in Florida that a child even gets to voice his or her own preference to a judge, themselves.


So, if you anticipate having your child appear as a witness in your custody case, you may want to rethink your strategy...


How it works:


When determining custody of a child, now titled “timesharing” in Florida, the courts apply and evaluate 21 statutory factors, spelled out in Florida Statute Chapter 61, to determine what timesharing arrangement is in the best interests of your child. Now, while one of the statutory factors is “the preference of the child,” this is only one but many factors the court evaluates, which all carry weight.


In essence, the court will evaluate each factor and determine if that factor falls in favor of mom or dad, whether it applies to neither parent, or whether such factor may be favored equally between the parents. The factors are as follows:


(a) 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.

(b) The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.

(c) 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.

(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.

(e) 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.

(f) The moral fitness of the parents.

(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 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.

(k) 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.

(l) 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.

(m) 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.

(n) 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.

(o) 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.

(p) The demonstrated capacity and disposition of each parent to participate and be involved in the child’s school and extracurricular activities.

(q) The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse.

(r) 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.

(s) The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs.

(t) Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.


After application of the above, the court will create a parenting plan (i.e. a timesharing arrangement) which will include when, where, and how often a child will visit with the other parent.


When you feel your child’s preference needs to be heard by a court, there are specific steps and avenues that can help allow for your child to have a voice, such as appointing a Guardian Ad Litem. However, moving forward with such action should be made in caution, as the process can be quite lengthy and sometimes complicated.


If you have any questions regarding your family law case, including how you can best allow your child’s voice to be considered in your custody dispute, contact an experienced family law attorney who can help implement your child’s needs into your strategy. Contact Prescott Legal at 813-530-8990.

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