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Child Custody

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Child Custody Part 2 The Custody Decision, Modification, and Relocation From Property to Person (almost) Pre-19th Century Common Law: Children were the property ... – PowerPoint PPT presentation

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Title: Child Custody


1
Child Custody
  • Part 2 The Custody Decision, Modification, and
    Relocation

2
From Property to Person (almost)
  • Pre-19th Century Common Law Children were the
    property of their fathers
  • 19th Century Development of the Tender Years
    Doctrine and custody awards of younger children
    to mothers
  • 1960s and 70s Best Interests of Child
    becomes dominant standard
  • 1970s and 80s Joint Custody laws enacted

3
Sole vs Joint Custody
  • Joint Custody becoming more common as society
    changes and fathers play a greater childrearing
    role in intact families which they expect to
    continue post-divorce
  • Some states have a presumption of joint custody,
    but that does not mean a 50-50 split of the
    childs time

4
Joint Legal vs Joint Physical
  • Joint Legal Custody
  • More common than Joint Physical
  • Shared decision-making, not necessarily different
    from sole custody in terms of time spend with
    each parent
  • Joint Physical Custody
  • Still a minority of cases
  • Child spends substantial, but necessarily
    precisely equal, time with each parent

5
Mix and Match
  • Can have joint legal without joint physical
  • Most common arrangement
  • Can have joint physical without shared decision
    making on major issues (joint legal)
  • Can have demarcated joint legal custody
  • Certain types of decisions (medical, religious,
    educational) assigned to one parent or the other)

6
Nesting Arrangements
  • Special type of Joint Physical Custody
  • Children stay in primary residence and parents
    rotate in and out
  • Works only where parties can cooperate at a high
    level and can afford three separate residences
    (fathers, mothers, childrens)
  • Doesnt permit geographic mobility and makes
    remarriage and additional children difficult

7
Custody by Any Other Name
  • Recent efforts to reduce the conflict inherent to
    possessory (fighting) words like custody and
    visitation
  • Alternate terminology
  • Parenting Plan
  • Parenting Time
  • Residential Time
  • Parental Responsibility (FL)

8
Custody Policy Statement (FL)
  • It is the public policy of this state to assure
    that each minor child has frequent and continuing
    contact with both parents after the parents
    separate or the marriage of the parties is
    dissolved and to encourage parents to share the
    rights and responsibilities, and joys, of
    childrearing. After considering all relevant
    facts, the father of the child shall be given the
    same consideration as the mother in determining
    the primary residence of a child irrespective of
    the age or sex of the child.- Fla. Stat.
    61.13(2)(b)(1)

9
Custody (Parent Responsibility) Presumption in
Florida
  • The court shall order that the parental
    responsibility for a minor child be shared by
    both parents unless the court finds that shared
    parental responsibility would be detrimental to
    the child.
  • - Fla. Stat. 61.13(2)(b)(2)

10
Areas of Shared Parental Responsibility (Joint
Custody)
  • In ordering shared parental responsibility, the
    court may consider the expressed desires of the
    parents and may grant to one party the ultimate
    responsibility over specific aspects of the
    child's welfare or may divide those
    responsibilities between the parties based on the
    best interests of the child.
  • Areas of responsibility may include primary
    residence, education, medical and dental care,
    and any other responsibilities that the court
    finds unique to a particular family.
  • - Fla. Stat. 61.13(2)(b)(2)(a)

11
Rotating Custody in FL
  • Fla. Stat. 61.121 provides that the Court may
    order rotating custody if the court finds
    rotating custody to be in the best interest of
    child after considering
  • Child's age, maturity, and preference
  • Length of each custody period
  • Disruptive influences created by alternating
    custody schedule including distance between
    residences, school, etc.
  • Parent's attitude toward each other and how
    attitudes might affect children.

12
Bests Interests of the Child?
  • Influenced by two books written by Goldstein,
    Freud (Sigmunds granddaughter), Solnit in the
    late 1970s
  • Beyond the Best Interests of the Child
  • Before the Best Interests of the Child
  • These books placed great emphasis on what has
    become known as bonding and the concept of the
    primary caretaking parent

13
Best Interests Defined?
  • Set of statutory factors related to parenting
    issues
  • Original statutes from Iowa and Minnesota with
    approximately ten factors served as the model for
    the rest of the country
  • Floridas factors are found in Fla. Stat.
    61.13(3)

14
Florida Definition of Bests Interests of Child
13 factors
  • (a) The parent who is more likely to allow the
    child frequent and continuing contact with the
    nonresidential parent.
  • (b) The love, affection, and other emotional ties
    existing between the parents and the child.
  • (c) The capacity and disposition of the parents
    to provide the child with food, clothing, medical
    care or other remedial care recognized and
    permitted under the laws of this state in lieu of
    medical care, and other material needs.
  • (d) The length of time the child has lived in a
    stable, satisfactory environment and the
    desirability of maintaining continuity.
  • (e) The permanence, as a family unit, of the
    existing or proposed custodial home.
  • (f) The moral fitness of the parents.   

15
Florida Best Interests Factors (continued)
  • (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 willingness and ability of each parent to
    facilitate and encourage a close and continuing
    parent-child relationship between the child and
    the other parent.
  • (k) Evidence that any party has knowingly
    provided false information to the court regarding
    a domestic violence proceeding pursuant to s.
    741.30.
  • (l) Evidence of domestic violence or child abuse.
  • (m) Any other fact considered by the court to be
    relevant.

16
Interpreting Best Interests
  • Factor (a) - The parent who is more likely to
    allow the child frequent and continuing contact
    with the nonresidential parent
  • Not present in most original child custody
    statutes
  • Reflects growing concern about parents who
    alienate children from the other parent
  • It placement as factor a reflects it importance
    in the decision making process

17
  • Factor (b) - The love, affection, and other
    emotional ties existing between the parents and
    the child.
  • Custody cannot be awarded to resolve a party's
    emotional problems. Miraglia v. Miraglia, 462 So.
    2d 507 (Fla. 4th DCA 1984). Trial courts
    concern that mother would be suicidal if she lost
    custody was improper factor.

18
  • Factor (c) - The capacity and disposition of the
    parents to provide the child with food, clothing,
    medical care or other remedial care recognized
    and permitted under the laws of this state in
    lieu of medical care, and other material needs.
  • Smoking where child has asthma found to be an
    issue, Thomas v. Harris, 634 So. 2d 1136 (Fla.
    1st DCA 1994).

19
  • Factor (d) - The length of time the child has
    lived in a stable, satisfactory environment and
    the desirability of maintaining continuity.
  • If one parent is able to retain the marital home
    in which the children have been raised, they may
    have an advantage on this factor. Adair v Adair,
    720 So. 2d 316 (Fla 4th DCA 1998)

20
  • Factor (e) - The permanence, as a family unit, of
    the existing or proposed custodial home.
  • Post-divorce remarriage or live-together
    arrangements by one or both parents can influence
    this factor depending on whether those
    anticipated changes in the structure of the
    family unit appear to be stable and long-lasting.
    Jacoby v Jacoby, 763 So. 2d 410 (Fla 2nd DCA
    2000)

21
  • Factor (f) - The moral fitness of the parents.
  • Focus on whether the parent's behavior has a
    direct impact on the welfare of the child.
    Connection between the acts of parent and impact
    on child must have an evidentiary basis and
    cannot be assumed.
  • Mere possibility of harm to child from parent's
    conduct is insufficient.
  • However, do not have to have proof of actual
    harm, past or present. Maradie v. Maradie, 680
    So. 2d 538 (Fla.1st DCA 1996) Dinkle v. Dinkle,
    322 So. 2d 22 (Fla. 1975), superseded by statute
    as stated in, Kuutti v. Kuutti, 645 So. 2d 80
    (Fla. 4th DCA 1994)

22
  • Factor (g) - The mental and physical health of
    the parents.
  • Merely contesting custody does not place a
    parents mental health at issue sufficient to
    waive privilege as to treatment records.
    Freshwater v Freshwater, 659 So. 2d 1206 (Fla 3rd
    DCA 1995)
  • Where information about treatment is vital to a
    proper determination of permanent custody, the
    privilege must give way to the best interests of
    the child. Critchlow v Critchlow, 347 So. 2d 453
    (Fla 3rd DCA 1977)

23
  • Factor (h) - The home, school, and community
    record of the child.
  • Evidence relating to grades, extracurricular
    activities, sports, community involvement,
    behavioral issues are all relevant to this
    factor. Stamm v Stamm, 489 So. 2d 851, (Fla 5th
    DCA 1986)

24
  • Factor (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.
  • This is not a dispositive factor standing alone.
    Gaber v. Gaber, 536 So. 2d 381 (Fla. 3d DCA
    1989).
  • Can be a very important factor for teens
  • But remember, there is no age at which a child
    can choose which parent to live with.

25
  • Factor (j) - The willingness and ability of each
    parent to facilitate and encourage a close and
    continuing parent-child relationship between the
    child and the other parent.
  • Not one of the original factors
  • Added, as with factor (a), out of concern for
    parents who engage in alienating behavior such as
    the alleged but unproven PAS
  • A pattern of denying or frustrating visitation
    may in come cases constitute a substantial change
    of circumstances justifying a transfer of
    custody. Williams of Williams, 676 So. 2d 493
    (Fla 5th DCA 1996).

26
What is PAS? Does it Exist
  • Parental Alienation Syndrome (PAS) was the
    brainchild of Richard Gardner, Ph.D.
  • Whether PAS exists has always been controversial
  • Not sufficiently researched and documented to
    constitute a true psychological syndrome
  • However, everyone involved in family law has seen
    concrete evidence of alienating conduct by parents

27
  • Factor (k) - Evidence that any party has
    knowingly provided false information to the court
    regarding a domestic violence proceeding pursuant
    to section 741.30.
  • A component of alienating behavior is often false
    allegations of domestic violence made to gain an
    unfair advantage in custody litigation.
  • In those states that do not have this as an
    expressed factor, the courts will consider this
    under one of the other factors such as moral
    fitness or mental and physical health

28
  • Factor (l) - Evidence of domestic violence or
    child abuse.
  • The abuse need not be directed at the child or in
    the childs presence
  • There need not be proof of a criminal charge or
    conviction
  • There need not have been a prior request for or
    issuance of a domestic violence injunction

29
  • Factor (m) - Any other fact considered by the
    court to be relevant.
  • A catch all for evidence that does not fit
    neatly under any of the other factors
  • The factors are not intended to be exclusive, and
    the court may consider anything it finds to be
    helpful is deciding PRC (primarily residential
    custody). Collins v Collins, 873 So. 2d 1261
    (Fla 1st DCA 2004).

30
Findings on the best interests factors in FL
(minority view)
  • The case law does not require the trial court to
    make specific findings regarding the designation
    of primary residential parent (PRP). Such
    findings are required in many other states to
    assist in appellate review.
  • Belief is that detailed findings can often harm
    the children involved.
  • However, the trial record should support a
    sufficient basis. Bader v. Bader, 639 So. 2d 122
    (Fla. 2dDCA 1994) Railton v. Railton, 639 So. 2d
    189 (Fla. 2d DCA 1994) Murphy v. Murphy, 621 So.
    2d 455 (Fla. 4th DCA 1993) Duchesneau v.
    Duchesneau, 692 So. 2d 205 (Fla. 5th DCA 1997)

31
Separating Siblings (Divided Custody)
  • Children in a family should not be separated from
    one another absent the most compelling of
    circumstances. Henderson v. Henderson, 537 So. 2d
    125 (Fla. 1st DCA 1988) Arons v. Arons, 94 So.2d
    849 (Fla. 1957).
  • Half siblings not controlling. Munson v. Munson,
    702 So. 2d 583 (Fla. 2d DCA 1997).

32
Prompt Custody Decisions Required
  • Timeliness of judge's decision is important
  • Where 14 months elapsed between trial and oral
    ruling and 16 months before ruling reduced to
    writing, new trial required. Falabella v.
    Wilkins, 656 So. 2d 256 (Fla 5th DCA 1995).

33
Parental Custody Agreements Not Binding on the
Court
  • The Court may reject agreements or mediated
    agreements where the terms are not in the best
    interests of the children. Feliciano v.
    Feliciano, 674 So. 2d 937 (Fla. 4th DCA 1996)
    Holland v. Holland, 458 So. 2d 81 (Fla. 5th DCA
    1984).
  • Consistent with courts role as parens patriae on
    child related issues like custody, visitation,
    and support

34
Tools to Assist the Court in Custody Cases
  • Guardian ad litem
  • In camera (in chambers) interview with child
  • Home Study or Investigation
  • Psychological Evaluation

35
Guardian ad litem (GAL)
  • Attorney or Non-attorney with specialized
    training and certification through a Guardian Ad
    Litem Program
  • Represents the childs best interests, not an
    advocate for the childs wishes (which would be
    an attorney for the child)
  • May conduct independent investigation and submit
    written report and recommendation (20 days before
    hearing in FL)

36
Advantages and Disadvantages
  • Adds a neutral third party whose only allegiance
    is to the childs best interests
  • GAL can conduct investigation that judge cannot
    (visit home and school, speak with family members
    and treating professionals)
  • Adds cost (if attorney) and complexity in
    scheduling
  • Creates a bidding war between the parents for
    the support of the GAL.

37
In Camera Interview of Child
  • Purpose is primarily to determine if child is
    mature enough to express a custodial preference
    and to determine that preference
  • Must be recorded if requested by either party,
    and failure to make a record of the interview is
    reversible error

38
Advantages and Disadvantages of In Camera
Interview
  • Allows child to express preference in less
    threatening setting than if in open court in
    front of parents
  • Many judges are not especially adept interviewers
    of children, and may unwittingly ask wrong or
    irrelevant questions that will mask the childs
    true preference

39
Home Study (Social Investigation)
  • Court may order in any contested case, cost paid
    by the parents
  • Study performed by qualified court staff, a
    licensed child-placing agency, psychologist,
    clinical social worker, marriage and family
    therapist, or licensed mental health counselor
    (or DCF if parent is indigent and court does not
    have adequate staff)
  • Written report with recommendations and factual
    findings presented to court and counsel for each
    party
  • Court may consider the report which will not be
    excluded by traditional evidentiary rules

40
Psychological Evaluations
  • Psychological evaluations authorized by
  • Fla. Stat. 61.20 (good cause must be shown
    and mental condition must be in controversy)
  • Fla. R. Civ. P. 61.360 (psychological evaluation
    may be ordered as part of social investigation)
  • If done for court evaluation purposes, there is
    no privilege associated with the evaluation

41
Advantages and Disadvantages of Psychological
Evaluations
  • Much more in-depth look at family functioning and
    relationship issues than with other types of
    evaluations
  • Good screening for mental health problems that
    are impacting parenting and suggestions for
    resolving those problems through treatment
    (medication or therapy)
  • Can take many months to complete
  • Cost can be thousands of dollars
  • Some judges merely rubber-stamp evaluators
    recommendation without independently reviewing
    the evidence

42
Custody Modification
  • There are facts concerning the welfare of the
    child that the court did not know at the time the
    decree was entered, or
  • There has been a change in circumstances shown to
    have arisen since the decree.
  • Promotes the finality of the judicial
    determination of the custody of children. After
    the trial court enters the original final
    judgment decree, it is res judicata of the facts
    and circumstances at the time the judgment became
    final.
  • Presumption in favor of the reasonableness of the
    original decree.
  • Presumption may be overcome when changes in
    circumstances have arisen which warrant and
    justify modification of the original decree.
  • No requirement to show detriment to child in
    order to obtain modification (reverses prior case
    law)
  • Wade v Hirschman, Florida Supreme Court No. No.
    SC04-1012, May 26, 2005

43
What usually isnt enough
  • Fact that parents cannot get along is not a
    substantial or material change in circumstances
    which without more justifies a change in custody.
    Zediker v. Zediker, 444 So. 2d 1034 (Fla. 1st DCA
    1984).
  • A primary residential parent's decision to
    relocate "in the absence of other compelling
    circumstances does not in and of itself support a
    change of custody." Botterbusch v. Botterbusch,
    851 So. 2d 903 (Fla. 4thDCA 2003).
  • Children's changing desires, preferences and
    interests as a result of growing up do not,
    standing alone, create a substantial change of
    circumstances. Finney v. Giddens, 707 So. 2d 856
    (Fla. 2d DCA 1998) Gibbs v. Gibbs, 686 So. 2d
    639 (Fla. 2d DCA 1996).

44
Process/Discretion for Modifications
  • Must be based upon pleadings and a properly
    noticed hearing. Gelato v. Basch, 658 So. 2d 664
    (Fla. 4th DCA 1995).
  • Court has less discretion in deciding
    modification than in deciding initial custody.
    Dobbins v. Dobbins, 584 So. 2d 1113 (Fla. 1st DCA
    1991).

45
Relocation Cases Todays Custody Battleground
  • Fla. Stat. 61.13(2)(d) replaced prior case law
  • Most state statutes and case law (including FL)
    are based on the standards in the New Jersey
    decision in DOnofrio v DOnofrio, 365 A. 2d. 27,
    affd 365 A. 2d. 716 (1976)
  • No presumption in favor of or against a request
    to relocate when a primary residential parent
    seeks to move the child and the move will
    materially affect the current schedule of contact
    and access with the secondary residential parent

46
Statutory Relocation Factors
  • Whether the move would be likely to improve the
    general quality of life for both the residential
    parent and the child.
  • The extent to which visitation rights have been
    allowed and exercised.
  • Whether the primary residential parent, once out
    of the jurisdiction, will be likely to comply
    with any substitute visitation arrangements.
  • Whether the substitute visitation will be
    adequate to foster a continuing and meaningful
    relationship between the child and the secondary
    residential parent.
  • Whether the cost of transportation is financially
    affordable by one or both parents.
  • Whether the move is in the best interests of the
    child.

47
Trends/Problems in Relocation
  • Some states enacting intra-state, not just
    inter-state, relocation restrictions (so-called
    75 or 100 mile rules)
  • As with custody, judges attitudes and values
    come into play as many of these cases involve
    remarriage or job issues
  • Most judges will say that these are their most
    difficult cases because it is winner take all
    where in custody there are compromise options
    such as joint or rotating custody if both parents
    are good custodial prospects
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