Legal Guide Regarding Melbourne, Florida Child Custody Cases

Cases involving child custody can create some of the most stressful and contentious situations in any area of law. All parents are concerned for the health, safety, and general wellness of their children. Disagreements often arise between parents as to what is in the best interest of their child or children. These disagreements can be unnecessarily heightened due to misunderstandings that one or both parents may have in regard to the law. It is, therefore, strongly suggested that you contact a family law attorney if you are in a dispute with your child’s other parent. Counsel can help you to ensure that the appropriate steps are being taken and that your rights are being protected. If you find yourself in such a situation, then contact my office today to speak with a Melbourne child custody lawyer.

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This guide is meant to provide basic information as to how Florida law operates in regard to child custody (which is otherwise known as “parental time-sharing” in our state).This guide can be easily navigated by using the “jump to section” links in the table of contents below.

Please note that this guide is for general informational purposes only. It should not be taken as legal advice and it is strongly suggested that you speak with counsel. I am a Melbourne child custody lawyer who is able to assist with such matters. Contact my office online or by telephone today to schedule an initial consultation.

Florida law in regard to child custody

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Florida law is similar to that of many other states in that it presumes that both parents should share joint custody of their child or children^[1]. This applies to what is generally known as “legal custody” as well as what is generally referred to as “physical custody.” This presumption also applies to unwed parents^[2]. This means, therefore, that unmarried parents are considered to have equal legal and physical custody rights as long as paternity has been established. Once a custody case is initiated, the Court will only vary from the presumption of joint custody if it is in the best interest of the child to do so. This section of this legal guide is meant to explain the differences between legal and physical custody, as well as how the Court determines what is in the best interest of the child.

Legal custody impacts the rights of a parent to make decisions while physical custody impacts whom the child will spend time with

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Legal custody is the ability of a parent to perform daily tasks necessary to parenting. These include the ability to enroll a child in school, to pick them up from school early, to consent to medical care, or any activity which requires one to be the child’s “legal guardian.” When parents share joint legal custody then each will have these abilities. It should be noted, however, that Florida differs from some other states in that a custody order must state which parent has primary responsibility for many of these tasks^[3]. However, having “primary responsibility” for such tasks does not mean that the non-primary parent has no authority. It simply means that one parent may have a “final say” if the two parents cannot agree on the issues.

Physical custody, by contrast, determines with whom the child is spending their time. If the parents share joint physical custody, then the child will split their time equally between the two. This can take a variety of forms. For example, some cases may involve a child who spends one week with a parent and then one week with the other. It can also involve two weeks on and off or a schedule in which non-school time is given to a parent. At the end of the year, any arrangement where a child spent an equal amount of time with each parent will have been considered joint physical custody.

Florida Courts will begin each case with the presumption that parents should share legal and physical custody

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Courts will award primary custody if it is in the best interest of the child

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Florida law requires Courts to begin each case with a presumption that the parents should enjoy joint legal and joint physical custody of the child^[4]. The Court will only award one parent primary physical custody of the child if doing so would better serve the child’s best interests. The factors which the Court will consider, when determining what is in a child’s best interests, include, but are not limited to^[5]:

1. The willingness of each parent to foster a relationship between their counterpart and the child
2. The ability of each parent to act upon the needs of the child
3. The amount of time which the child has spent living with each parent
4. Geographic viability
5. The moral fitness of each parent
6. Any history of domestic violence (more on this below)
7. Etc.

The Court does not need to give these factors equal weight when considering them. In other words, the Court may choose to award a parent primary custody on the basis of one factor alone. Also, the Court may make a custody award based on the totality of the circumstances. How the Court will rule in any given situation is always going to depend on the specifics of the case.

Suppose, as an example, that John and Jennifer have a ten-year old child and will be going their separate ways. They need to establish a child custody order and both have been good parents during the child’s life. John, however, works nights Monday through Friday and, as a result, may not be available to get the child off to school in the mornings. He may also not be available, due to his schedule, when the child gets home from school. In this situation the Court may grant Jennifer primary custody due to John not being available to meet the needs of the child. If, however, John shows that he can meet his work obligations and still be available to care for the child then the Court may still award him primary custody. The totality of the circumstances of overall facts of the case will form the basis of the Court’s final ruling.

When weighing the best interest factors, the Court will focus on objective evidence. Judges often give little to no weight to generalized claims that the other parent is “bad.” Instead, the Judge will focus on information which is more verifiable. If one is claiming that their ex is an alcoholic, then the Court will consider whether there has been a DUI arrest, whether the parent has been arrested for public drunkenness, or if other evidence (such as bank records) is presented which shows heavy drinking. Courts will generally ignore claims which cannot be verified in some way.

Florida Courts must presume that a parent should not receive joint custody if they are found to have committed domestic violence

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Courts in our state must begin each case with a presumption that a parent should not enjoy joint custody if they have engaged in domestic violence against the other parent, the child, or one who has lived with the child^[6]. This presumption applies when a parent has been convicted of domestic violence. A parent can overcome this presumption by demonstrating that, in spite of the conviction, the child’s best interests would still be served by the parents receiving joint custody. Such a showing could be possible, for example, if a parent has been convicted of domestic violence but the conviction is very old, and the other parent fails to supervise the child on a regular basis. Again, how the Court will rule in any given situation will always depend on the facts of the case. Discussing one’s situation with an attorney can be crucial.

A difference in Florida law, from that of some other states, is that the presumption against joint custody applies in situations where a parent has been convicted of domestic violence. Some other states apply a similar presumption in matters where the Court simply finds, by a preponderance of evidence, that domestic violence occurred. This means that Courts in other states have far more leeway to apply a domestic violence presumption than do those in Florida. This should not be taken to mean, however, that Courts will not take claims of domestic violence seriously. They most certainly do.

Establishing child custody in the state of Florida

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Several steps can be involved when establishing child custody in Melbourne and other Florida areas. As a result, the process can take a significant amount of time. If you are in Melbourne, or another Brevard County area, then you will be required to attend mediation (in most instances). If mediation is not successful, then the litigation process will begin. This section of this guide will explain the general process of establishing custody in our area.

Parents in Melbourne and other Brevard County cities are required to attend mediation in most child custody cases

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Some states in the US only require parents to attend mediation under specific circumstances. The state of Florida is different. Any Brevard County parent, including those in the Melbourne area, who is seeking to establish or modify child custody will be required to attend meditation pursuant to an Administrative Order of the Eighteenth Judicial Circuit^[7]. The requirement to attend mediation does not apply in matters which involve allegations of domestic violence or in which the parties are in agreement as to the resolution of the matter. Mediation can be held through a Court-sponsored program or with a private mediator. If all issues are resolved at the mediation then an agreement will be signed by the parents. If the matter is not resolved then the case will proceed to litigation.

Mediation is overseen by a neutral third-party known as the “mediator.” The mediator will speak with each parent (who are often in separate rooms) and will go back and forth in an attempt to reach a resolution. A key aspect of this back and forth is that the mediator will attempt to show each party any problems with their particular arguments and to get all sides to be reasonable. While many parents are often skeptical of mediation, the truth of the matter is that it facilitates communication between the parties and a settlement can often be reached. In short, simply getting the parties to communicate can often resolve the outstanding issues. Many cases, however, do not settle at mediation. A failure to settle the case will result in litigation.

While it is always better for parents to agree on issues, parties should not feel as if they have to settle at mediation. It is not uncommon for parents to want to settle the case to “get it over with” or to reach an agreement due to feeling pressured. If one has legitimate concerns over a proposed settlement, or they believe that the settlement is not in the best interest of the child, then it may be better to litigate the case. It is generally best to discuss any proposed settlement with one’s attorney prior to signing it. Counsel will help a parent to understand all of the ramifications of a proposed settlement and how they may impact one’s situation going forward. A parent is completely within their right to tell a mediator that they would like their attorney to review an agreement prior to signing it. It is generally advised to speak with counsel prior to signing any legal document.

Petitioning The Court For Child Custody

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The first step in litigating a matter will be to file a Petition for Child Custody. This is a formal document in which the parent initiating the case will state basic information as well as the outcome they are requesting from the Court. The Petition will be served upon the other party and they will file a response. If the other party does not file their response within a requisite time then they will be considered to be in default. In the event of a default, the initiating party may request a Judgement from the Court in their favor. Such requests are typically granted. Depending on the facts of the case, the Court may or may not require a hearing to grant a default judgement. If the responding party files their opposition in a timely manner, then the litigation process will proceed.

Establishing a temporary child custody order

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It is common for the Court to hold a hearing early in the proceedings based on a request for a temporary child custody order. The establishment of a temporary order can be quite important as it allows for the parents to have a set structure, which must be followed, while the case proceeds. This order will provide a custody/time-sharing schedule, directives for child support, and other requirements which the Court requires. Having these orders in place prevents a situation in which parents will disagree over who should have the child at what times as well as over financial obligations. This order will remain in place until modified or the case is resolved either through a settlement or a trial. The final order from either a settlement or trial will be the “final” order which the parents must follow.

Consider a situation in which Mom and Dad are involved in a dispute and do not have a temporary Order in place. This would create a situation in which one parent may refuse to return the child to the other and there is no official documentation stating who is to have the child at a given time. There would also be no set structure in place regarding holiday scheduling, the payment of expenses, and more. The tension between the parents and the level of conflict can quickly become extreme. In addition to this being stressful for the parents, it is also likely going to be detrimental to the emotional wellbeing of the child.

The Court hearing for the establishment of a temporary order will not resemble a trial. The parties typically will not testify and the hearing will be relatively short. The hearing will mostly consist of oral arguments which the attorneys for each side offer to the Court. The Court will typically ask questions of the lawyers and the Judge may ask questions to the parties as well. After the hearing, an Order will be written and submitted to the Court for signature. Once this Order is signed by the Judge, and entered, then each party can be held in Contempt for failing to follow it. If either party has questions about the meaning of the Order, then it is vital that they discuss those questions with their attorney.

The importance of discovery in a child custody case

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Trial will typically not occur until several months after the hearing to establish a temporary custody order. During this time, the parties may engage in a process known as “discovery.” This is the process by which information is gained from the other side, and from third-parties, in litigation. The process provides several tools through which such information can be gained.

First, interrogatories can be used to require that the other parent provide written answers to written questions. Second, requests for production can be utilized to provide the other parent to provide records, copies of documents, and other tangible items. Third, depositions can be used to gain sworn testimony from the other parent as well as other witnesses. Additionally, subpoenas can be used to gain records, documents, and other objects from third-parties (such as employers).

The importance of discovery cannot be overstated. It allows parties to accumulate the evidence they need for trial. Without discovery, a parent will likely attend trial unprepared and without needed information. Consider the following example. Suppose a mother wishes to prove that the father of her child is an alcoholic. She utilizes discovery to obtain his bank records. These records show regular and excessive spending at bars, liquor stores, and other places where alcohol is sold. Also, the mother’s attorney subpoenas and deposes the father’s employer. The employer’s testimony shows that the father has previously been warned about coming to work while smelling of alcohol. This evidence can allow the Court to reach a ruling that the father drinks excessively. Without this evidence, however, the mother would simply be making an unsupported claim (which Courts often ignore). In other words, without the conducting of discovery, the mother would not have been able to prove her case. While the outcome of any matter will always depend on the specifics of the case, this example shows the importance of discovery in regard to accumulating evidence for trial.

It is common for parties to attempt to avoid answering discovery requests. This is especially true in situations where a parent is representing themselves. It should be understood that responding to discovery is not seen as optional. If a party refuses to respond to a request, without a valid objection, then the party requesting the information may file a Motion to Compel and the Court can order the offending party to respond. If the discovery violations continue, then the Court may go as far as striking the responsive pleadings of the offending party and placing them in default. This could allow the other parent to gain a default judgment in the matter.

Attending a child custody trial in Melbourne and other Florida areas

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Child custody trials in Melbourne and the rest of Florida are “bench trials.” This means that the Judge is also the decider of fact; there is no jury. The case will begin with the attorney for the Petitioner (the parent who initiated the case) making an opening statement. Counsel for the responding party will then make their opening statement. The Petitioner will present their evidence and witnesses. The responding party will present their evidence and witnesses. The Petitioner may then present “rebuttal” evidence. Rebuttal may only be used to directly address claims made by the respondent party; this part of the case may not be used to raise new arguments. Each side will then make a closing argument and the Judge will issue a decision. Once the final Order is signed by the Judge, the matter will be concluded.

While the trial process may sound straightforward, it is important to understand that it is not. The rules of evidence will be enforced by the Court. This means if evidence is not properly introduced and presented as relevant then the Court may refuse to consider it. Moreover, failing to properly object during the proceedings can result in the Court considering evidence from the other side which should not have been admitted. It is possible that a parent may have the stronger of the two cases, but then loses the trial due to the mishandling of evidence. Having an experienced attorney, who has taken cases to trial, can help to prevent this from happening. As a Melbourne child custody lawyer, I am experienced in the handling of such trials.

Options for parents in Melbourne and other Florida areas after their child custody case has ended

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The parents will be required to follow the Court’s custody Order once trial has concluded or the case is otherwise resolved through mediation or settlement. If a parent fails to follow the Order then, depending on the circumstances, they may risk being held in Contempt of Court. A failure to follow the Order, or other changes in circumstances, can result in the other parent requesting the Court to modify the custody arrangement. This section of the guide will discuss the possibility of changing child custody after an Order has been entered by the Court.

Changing a Florida child custody order after it has been entered requires a change of circumstances

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Florida parents may modify a child custody Order if two requirements are met. First, there has been a “change of circumstances” since the Order was entered. Second, the proposed change is in the best interest of the child. It is important to understand that circumstances must have changed since the last Order was entered. Facts which occurred, prior to the entry of the previous Order, will not be considered by the Court. In some instances a single event may be enough to show that circumstances have changed. Also, a long passage of time will often constitute changed circumstances. If a parent can show changed circumstances then the Court will apply the “best interests of the child” analysis, described above, to determine a new custody arrangement.

The foregoing is best explained by way of example. Suppose Jack and Jill receive a custody Order which states that they will share the child equally. The parties live close together, at the time the Order is issued, and it is not an issue for the child to get to school from either of their residences. Six months later, Jack is told that his landlord is selling the home which Jack leases. Jack then moves further away and the child getting to school each day, from Jack’s residence, is no longer feasible. This move, by itself, is likely a sufficient change of circumstance to modify custody as Jack will not be able to get the child to school during the week. If the child is otherwise doing well, and there are no other problems, the Court may possibly modify custody in favor of Jill. This simplified example shows how a change of circumstance, which occurred after the custody Order was entered, may justify a modification. An experienced attorney can help with determining whether the facts of a given case will constitute circumstances which the Court may see as justifying a change.

Petitioning the Court to change child custody in our state

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The first step in requesting a change of child custody is to file a Supplemental Petition with the Court. This is a document in which the requesting parent will explain how circumstances have changed since the last Order and why the proposed change will serve the child’s best interest. Documentary evidence and affidavits can be attached to the Motion in the form of exhibits. The Supplemental Petition will be served on the other party and they will be able to file a responsive pleading before the Court holds an initial hearing on the Supplemental Petition. Similar to the hearing on a request for Temporary Orders (described above), the initial hearing on the Motion will be relatively short. It will mostly consist of oral arguments from the attorneys for each side and it is rare that the Court will consider testimony.

There are three primary potential outcomes of the initial hearing for a request to change custody. First, the Court may outright deny the request. This will occur if the Judge finds that the allegations would not support a change even if true. If this occurs then the existing custody Order will remain in place. Second, the Court may outright grant the request and make the requested change. While not overly common, there are situations where such an outcome can occur. Third, and most common, the Court will set a trial date to determine if a change of custody is warranted. Depending on the facts of the case, the Court may or may not make a temporary change of custody after the hearing, with a more permanent decision to be made at the time of trial.

If a trial is scheduled, then each side will typically be given the opportunity to conduct discovery beforehand. Discovery, however, may only focus on facts which have occurred since the previous child custody order was entered. If a party attempts to conduct discovery into pre-order issues, then the other side may issue an objection to the requests. Trial in such matters will resemble the process, described above, when the Court is issuing an initial custody Order. As with an initial trial, the Court will enforce all rules of evidence and procedure.

Brevard County parents will be required to attend mediation prior to the initial hearing on a Supplemental Petition to Modify Custody

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As explained above, unless special circumstances exist, parents in Brevard county will most likely have to attend mediation to attempt to work out their differences. The hearing on any Supplemental Petition in Brevard County will typically be delayed until after the parties have attended mediation. An exception to this requirement exists for matters which involve allegations of domestic violence. Parents may choose to attend mediation with a private mediator or they may choose to utilize the Court’s programs. If a settlement is reached at meditation then that settlement will form the basis for a new child custody Order. If a resolution cannot be reached then the case may proceed through the normal litigation channels.

Florida parents may request an emergency hearing to change child custody

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If a parent is attempting to modify child custody then the Court may be willing to hear the matter on an expedited basis if the matter is an emergency. It is important to understand, however, what the Court will consider an “emergency.” The Court will consider the matter urgent if the situation threatens the safety or wellbeing of the child. Such situations may include those involving abuse, drug use by a parent, or the parent engaging in conduct which is endangering the child (such as regularly driving drunk with the child in the car). Simply disagreeing with the other parent’s decisions, or lesser issues, will not typically be seen as an “emergency” in the eyes of the Court.

Consider the following example. Suppose Joe and Jane have an Order granting them equal custody of their five-year old daughter. Jane will regularly have a single glass of wine while having dinner in her home with the child. Also, from time to time, Jane may have a single glass of wine while out to dinner with the child before driving home with her. Joe files a Petition to modify custody and claims the situation is an emergency. Given that there was no evidence that the mother is actually impaired in the presence of the child, or while driving, the Court would be unlikely to consider the matter urgent. Joe’s Petition would likely be heard in the ordinary amount of time and not on an emergency basis. Now suppose that Jane was arrested for a DUI with the child in the car and Joe claims that she is regularly driving drunk with the child. On these facts, the Court may consider the matter urgent enough to move up the hearing. What the Court will, and will not, consider to be an emergency will always depend on the facts of the case.

If a child’s wellbeing is in imminent danger, and there is no time to waste, then a parent should contact law enforcement immediately. Absent a life-threatening emergency, or other situation where the youth is facing imminent peril, parents should discuss their situation with an attorney before filing an emergency request or contact the Department of Children and Families. Making claims of an emergency, which are found to be unjustified, can have the result of hurting one’s case more than it helps it. The Court may see the making of unfounded claims as an attempt to interfere with the other parent’s relationship with the child. A parent may very well have a basis to change custody, but not to ask for an emergency proceeding. An experienced attorney can help with determining the best way to proceed.

How child support is calculated in the state of Florida

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A dictate regarding the payment of child support will be included in any Florida child custody Order. Our state follows a three-part formula when determining support. First, the Court will analyze the monthly income of each parent. It is important to note that “monthly income” is not the same thing as “gross monthly income.” When determining monthly income, the Court does not include items such as required alimony payments, mandatory payments to a labor union (such as dues), expenses related to one’s job, etc. Second, the Court will consider health-related costs for the child. Finally, the Court will consider a standard amount which is needed to raise the child (this amount is set by the state). This “standard amount” will vary based on the income of the parents.

If a parent earns less than the “standard amount” which the state considers needed to support the child, then the Court will determine the amount which the parent is to pay. If the parents share joint custody, then the Court will calculate an amount for each parent and offset them. The parent with the higher obligation will pay the difference between the two amounts. So, as an example, if Jack and Jill have joint custody and Jack would be paying $800 per month and Jill would be paying $300 per month, then Jack would owe Jill $500 each month ($800 – $300). In terms of complexity, Florida’s child support calculations methods can likely be considered “in the middle” of other US states, with some having a more complex calculation system and some having a simpler system.

It is important to note that Florida parents cannot attempt to dodge their support obligations by choosing not to work or by choosing to work for less than what they are capable of earning. Parents who earn less than what they are capable of are likely to be considered “underemployed” by the Court. When an individual is underemployed then the Court may choose to order that parent to pay support as if they were earning up to their actual potential. This means, for example, that if Jack is capable of earning $60,000 per year, but is choosing to work part-time for $25,000, then the Court could order him to pay an amount consistent with a $60,000 salary. A parent does not have to be intentionally trying to avoid child support in order to be found “underemployed.” Conversely, a parent will not necessarily be considered underemployed simply because they are earning less than what they are capable of. The facts of the case, the reasons for one’s lower earnings, and efforts being made to earn more money will all be considered when the Court is determining whether one is underemployed.

Retain a Melbourne child custody lawyer if you are involved in a family law dispute

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If you or a loved one are involved in a family law dispute then it is strongly suggested that you retain an attorney to assist you. As demonstrated in this guide, such disputes can involve complicated issues of fact and law. Experienced counsel will have an understanding of what facts are, and are not, relevant to a given matter. Moreover, having representation helps to ensure that you are following the legal process and can help prevent you from taking actions which may hurt your case. When selecting a representative, it is strongly suggested that you retain an individual with extensive experience in such matters.

I am a Melbourne child custody lawyer whose practice is solely devoted to the handling of domestic relations matters. I have taken numerous cases to trial and I am proud of the level of service which my firm offers to our clients. If you are in need of assistance then contact my office online or by telephone today to schedule an initial consultation. We look forward to speaking with you. We also service clients in the Brevard County cities of Titusville, Cocoa, Palm Bay, Grant, Valkaria, and Rockledge, as well as in the Indian River County areas of Fellsmere, Sebastian, Vero Beach, Indian River Shores, and Orchid.
References

^[1] Fla. Statutes 61.13 (2)(c)(1)
^[2] Fla. Statutes 744.301(1)
^[3] Fla. Statutes 61.13 (2)(b)
^[4] See Citation No. 1
^[5] Fla. Statutes 61.13 (3)
^[6] Fla. Statutes 61.13 (2)(c)(2)(a)
^[7] ADMINISTRATIVE ORDER NO.:16-30-B