Fighting for Sole Custody of a Child

Under Florida law, “child custody” is an obsolete term. Custody is now referenced as parenting time with equal time favored by the courts, but with one parent enjoying the majority of parenting time in most instances. Still, it is the policy of the courts for both parents to have continuing and frequent contact with their children unless there are exceptional circumstances.

But there are situations when a parent may want sole parenting time to the exclusion of the other parent, but who may be granted visitation rights with or without limits or supervision.

To obtain sole physical and legal custody or responsibility, you must demonstrate that shared parental time and responsibility will not be in the best interests of the child and will, in fact, be detrimental. Unless there are extraordinary circumstances in play, the parent who does not have the majority of parental time or parental responsibility will retain minority parental time. “Sole custody” in this context means the child will reside with one parent, and that this parent will make all of the material decisions affecting the child’s health, safety, education and welfare to the exclusion of the other.

In all of these cases, the advice and counsel of a highly experienced and knowledgeable family law attorney is vital.

The Parenting Plan

Whenever the parents separate or a petition for dissolution is filed, the parents must negotiate and draft a parenting plan (if the parents cannot agree, the court must establish a parenting plan). If you leave one parent out completely, the court may accept the plan unless the court finds the parenting plan is in the child’s best interest. At a minimum, the plan must include:

• Schedule for shared responsibility regarding daily routines
• Time sharing schedule—when the child will be with a particular parent
• Whose address or residence is being used for school registration and other activities
• How the parents will endeavor to communicate with one another
• Which parent is responsible for school and medical issues

You can approximate the equivalent of “sole custody” if the plan is carefully drafted by your family law attorney and achieve your goal of having near-exclusive parenting time and unilateral parental responsibility. The plan, however, must be court approved even if both parents are in agreement. If you cannot agree on one or the court will not approve the one you drafted, then the court will draft one for you but only after it considers a variety of factors. If you want the other parent excluded as much as possible, you may have a long and costly conflict on your hands.

Parenting Time Disputes

Should the other parent dispute your goal of “sole custody,” your family law attorney will have to litigate the matter and demonstrate to the court that the other parent is unfit or that the parent’s conduct and attitudes will bring significant harm to the child if granted any degree of time sharing.

An extreme measure is to terminate the other parent’s rights. This is a very difficult and complicated process. You will need convincing evidence that the parent has abused, abandoned, or neglected the child. This may require the production of criminal court records and police reports as well as expert medical and psychological testimony. This can be emotionally wrenching for all parties and devastating for the child who may have to relive, in detail, the abuse received from a parent or become aware that the parents have extreme animus toward one another.

Factors Used by the Courts to Determine Sole Parenting Time

To obtain sole or even majority parenting time, the court will look at a number of factors:

• Evidence of substance abuse in the parents’ homes
• Examine evidence of domestic abuse including physical or sexual improprieties or assault, neglect and abandonment
• Other evidence of both parents’ mental and physical health
• What are the abilities of each parent to provide an acceptable routine including discipline, doing homework, attending extra-curricular activities, meals and bedtime?
• How involved are the parents in the child’s daily activities? Do they know the names of friends, teachers, coaches and physicians ? Does a parent participate in the child’s activities?
• Will the parents honor the other parent’s time sharing schedule and keep the other informed of the child’s activities and issues?
• Has one parent falsely accused the other or provided false evidence of domestic abuse, neglect or abandonment?
• The child’s preference if the child has the intelligence, experience and understanding to form a meaningful opinion

Likelihood of Gaining Sole Parental Time

In the past, a mother was generally granted full custody or the majority of parenting time, especially if the child was young. Currently, the courts are not to favor one gender or parent over another and must look to the factors enumerated above, among others, to determine which parent should have the majority of the parenting time. In most cases, the court will order joint parental responsibility for making the major decisions affecting the child’s welfare, safety and health. Granting sole custody is an extreme measure with the likelihood of such happening not very likely.

If you can demonstrate that the child will be harmed by spending time with the other parent, the court may still order supervised visits or limit the time. You will probably have to show proof of past harm to the child and the substantial likelihood that your child will suffer if the other parent is allowed to be with the child at all or if supervised visitation is an alternative.

Modifying Child Custody Orders

Although parenting plans are permanent, you or the other parent will have to demonstrate that there has been a substantial change in circumstances since the order was issued if changes are desired. A parent who has been denied significant visitation or any visitation because of domestic violence, drug or alcohol abuse or any other conduct deemed detrimental to the child’s well-being may be able to show proof of rehabilitation or a drastic change in lifestyle that no longer threatens the child and that the old parenting plan no longer serves the child’s best interests.

A court will favor having both parents involved in the child’s life and will likely grant limited or supervised visits if the parent can show that the child will be emotionally and physically safe. A hearing will be conducted unless there is consent to the change and can involve testimony from therapists, physicians, teachers, family members and records from treatment facilities, schools and police.