Florida’s empty promises

Florida eliminates the presumption of ‘Equal Timesharing’

NB. this article has been overtaken by events and new legislation – see https://sharedparenting.wordpress.com/2013/04/22/31/

In Florida, prior to 1997, courts failed to apply the presumption that ‘equal timesharing’ of child custody be equal and the starting point. Instead, they viewed equal timesharing’ as something to be ‘presumptively disfavoured’ (for cases see, for example; Ruffridge, 687 So.2d at 50, and Langford, 654 So.2d at 1238).

Other instances of being ‘presumptively disfavoured’ might be the state’s or court’s view on the (in)validity of marriage between same-sex couples, bigamy, polygamy etc.

This presumption against equal timesharing of custody appeared to be overturned when new legislation was enacted, i.e. Section 61.121. The post-1997, the Floridian legislation stated:

•  “[t]he court may order rotating custody if the court finds that rotating custody will be in the best interest of the child.”

However, the courts in Florida persisted in going their own way – much like family courts in the UK after the Children Act of 1989 was passed.[1] Courts in Florida continued to apply the presumption against ‘rotating custody’. [2]

Then, in 2008, the legislature amended the statute concerning timesharing and specifically eliminated the presumption against equal timesharing. [3] Instead, the new legislation focuses on the indeterminable standard of ‘best interests of the child’ [4]

In deciding whether ‘equal timesharing’ is appropriate, the court is asked to consider several factors including:

• (1) the age and maturity of the child
• (2) whether the child is school age
• (3) whether the parents lived near each other
• (4) whether the child preferred a rotating time share
• (5) whether the rotation would have a disruptive effect on the child
• (6) whether the times spent with each parent were reasonable
• (7) whether the division of the time share related reasonably to the child’s life, such as school year
• (8) whether there is animosity between the parents. [5]

‘Equal timesharing’ offers many benefits to a child of divorce. For example, when a child spends substantial time with each parent, the “custodial parent” is less likely, and less able, to use the child as a pawn or weapon against the other parent.

Equal timesharing also allows the child to have frequent and meaningful contact with both parents and allows both parents to make decisions affecting the child’s life such as academic and medical decisions.

Under the standard arrangement, where the child resides the majority of the time with one parent, it is that parent that typically makes all the decisions affecting the child’s life, often without communicating with the other parent.

Despite the change in law and the benefits of equal timesharing, the courts still disfavour equal timesharing. With today’s technology, such as Skype, it is much easier to spend time with the child without actually being present (also known in the UK as ‘indirect’ contact).

The court views these alternative means of timesharing (contact), to be less disruptive to the child. As a result, there must be a specific showing that equal timesharing is in the best interests of the child. But any court and any society that offers these as equivalents or alternatives insults the very dignity of fathers and deliberately cripples a child’s right to proper development and socialisation.

The 2008 change in the law eliminated the term “visitation” and replaced it with “timesharing.” In the European context this semantic change in Florida does not go far enough. In essence ‘equal timesharing’ is only an enhanced version of ‘contact’ and ‘visitation’ time / rights. There is precious little equal about it.

If timesharing is the ‘visitation schedule’ between the two parents and the child(ren), why not call it a parenting plan which is self-explanatory ?

Without further confirmation it looks as if Florida’s equal timesharing merely suggests – but does not guarantee – a greater quantum of time that a father can spend with his children.

This opinion is rammed home by the sub-notes that equal timesharing is not to be confused with parental responsibility (which is the authority to make decisions regarding the child’s day-today activities). ‘Parental responsibility’ is slowing be recognised as the ‘sop’ to the masses that it truly represents.

Not for the first time do we see family courts ignoring both the will of the people they serve and the written law.

• NB. The above is taken from “Florida Legislature Eliminates the Presumption against Equal Timesharing” http://www.owenbylaw.com/practice-areas/child-custody-and-support/presumption-against-equal-timesharing

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[1] That is ignoring ‘shard residence’ for the most part.

[2]  See Cooper v. Gress, 854 So.2d 262, 266 (Fla. 1st DCA 2003).

[3] The 2008 change in the law eliminated the term “visitation” and replaced it with “timesharing.” Timesharing is the visitation schedule between the two parents and the child(ren), not to be confused with parental responsibility, which is the authority to make decisions regarding the child’s day-today activities.

[4] That is, the impossibility to definitively determine and consistently

[5]  See Bainbridge v. Pratt, 68 So.3d 310 (Fla. 1st DCA 2011).

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