There are many misperceptions in regards to the rights of fathers in Florida and throughout the Country. This is true whether the dad is married or unmarried. These misperceptions often revolve around a belief that a mom has “all the rights” when it comes to child custody and there is little the dad can do. The truth of the matter, however, is that once paternity has been established then our state will view the rights of a dad as equal to those of a mom. Understanding the protections which the law does, and does not, provide to each parent can be crucial to effective co-parenting. It can also help to make sure that your son or daughter is raised in a supportive environment. To that end, we are providing this legal guide to provide information which will hopefully help people to better understand their situation. It is important to understand that this guide is for informational purposes only and should not be considered legal advice. If you are involved in a paternity or child custody dispute then it is important that you speak with a family law attorney immediately. Our office focuses on domestic relations law. Contact us today to speak with a Melbourne lawyer. We also serve other areas in Brevard County and Indian River County.
We will be discussing a number of topics in this guide. To skip to a particular section, simply click “jump to section” in the table of contents below.
Table of Contents
- Florida law regarding the rights of fathers (jump to section)
- Establishing paternity in the state of Florida (jump to section)
- Establishing child custody & visitation (jump to section)
- Changing child custody in our state (jump to section)
- Dealing with a mother who is withholding the child (jump to section)
Understanding Florida law regarding the right of fathers
Florida presumes that parents should share child custody as long as paternity has been established
It is still not uncommon for individuals to believe that a father has no legal rights in child custody proceedings. The fact of the matter, however, is that Florida views the rights of a father to be equal to those of a mother once paternity has been established. Under Florida Statute 61.13(2)(c)(1), the Court is not permitted to show a preference for the father or the mother. Furthermore, under Florida Statute 61.13(2)(c)(2), the Court is to begin each case with the presumption that parenting rights and responsibilities should be shared between the parents. The Court will only deviate from this presumption if doing so would better serve the best interests of the child. To put this another way, the Court is required to start each case with the belief that custody should be shared. A parent must convince the Court that shared custody would not be in the child’s best interest if that parent wishes to have a majority time share. Again, this presumption will apply if paternity has already been established (we discuss the establishment of paternity later in this guide).
Florida child custody decisions will be based upon the best interest of the child
The Court will consider several factors when deciding what is in the best interest of a child. These include, among other things:
- The historical relationship between the child and each parent
- The needs of the child and the ability of each parent to meet those needs
- The preference of the child (depending on the child’s age and maturity)
- Each parent’s effort to foster a relationship with their counterpart and the child
It is also important to note that the Court is required to presume that shared custody is not in the best interest of the child if one of the parents has been found guilty of domestic violence. Under Statute 61.13(2)(c)(2)(a), such a conviction means that the Court will begin the case with the idea that the parent, who has been convicted, should not enjoy joint custody. This presumption, however, is rebuttable. This means that the convicted parent will have the opportunity to show the Court that they should, in fact, enjoy an equal time share with their son or daughter.
The Court is not required to weigh the best interest factors equally when making child custody decisions. This means that one factor may outweigh the others. Suppose, for example, that the mother has historically been the primary caregiver. Also, suppose that the father works full-time at night and that the child goes to school during the day. Also, let us assume that the child (who is ten years old) has expressed an interest to live with the mother. These factors may seem to weigh in favor of the mom receiving a majority time share. The facts also show, however, that the mother has developed a severe drug problem and will likely be impaired while caring for the child. Under these facts, while mom would “win” in regard to several of the best interest factors, the father would likely be awarded primary custody. It is important to note that this is simply an example. How the Court will rule, in any case, will always depend on the facts of the situation. This example is simply meant to illustrate that one factor may outweigh the others when the Court is reaching a decision. If you wish to discuss specifics about your situation then contact us today to speak with a Melbourne lawyer.
Fathers should take immediate action if they are unhappy with their current child custody situation
An important point for fathers to understand is that they should take immediate action if they are unhappy with their current child custody situation. As explained above, one of the factors the Court will consider is the historical relationship between the child and each parent. This means that if a dad allows the situation to go on for too long then there is an increased chance that the Court will consider such a situation to be the “status quo.” This can result in the Court being less likely to change the situation as such a change could possibly be detrimental to the child. The extent to which the Court will wish to leave a status quo in place will depend on the specifics of the situation.
Suppose a child is eight years old and the unmarried parents do not live together but paternity has been established. Now suppose that the father has had the child on the weekends for many years. Dad decides he would like the child fifty percent of the time but the mother disagrees. The father files a custody case requesting an equal time share. While Florida law does presume that custody should be shared, the mother may successfully argue that her historical role as the primary caretaker should not be disrupted as the child now has a routine. If there are no other important facts in the case, the Court may grant the mother’s request; the father, in the Court’s eyes, has not had a problem with the arrangement for years and nothing has changed which would justify disrupting the child. In other words, the father established a “status quo” by allowing the mother to have a majority time share for several years.
The foregoing example does not mean that the Court will always defer to the status quo. Let’s suppose that circumstances had recently changed. The mother had begun to abuse drugs, or was engaging in other problematic behavior and such conduct only recently began. The father requests a change of custody. Given the recent change in events, the Court would likely be less inclined to give weight to the historical relationship between the mother and the child.
The point to take away from this is that if a father is unhappy with his current custody situation, then he should immediately file an action with the Court. By doing so, he does not allow the situation to fester and does not allow a status quo to form.
A Florida father will have no rights until paternity is established
As explained above, a father is seen as having rights equal to the mother as long as paternity has been established. It is important to understand, however, that if paternity has not been established then the father is not “dad” in the eyes of the law. In other words, the biological father will have no more rights or obligations, in regard to the child, than anyone else. The first step, therefore, for Florida fathers wishing to establish custody and visitation is to establish paternity if they have not done so already. In this section of our guide we will discuss the ways in which a father can establish paternity and the process one typically faces if Court action is required.
When and how Florida fathers may establish paternity
For most Florida children, paternity will be established at the hospital when the child is born. If the parents are married at the time of birth, then the husband is presumed to be the biological father and will be declared as such at the hospital. If the parents are not married at the time of birth, then both parents can fill out a Paternity Acknowledgment Form at the hospital. If the form is properly completed by both parents then the hospital will submit it to the appropriate entity and paternity will be established.
If the parents are not married at the time of birth and have not otherwise established paternity, but wish to subsequently marry, then paternity is established relatively easily. This can be accomplished when the couple is applying for their marriage license. If the unmarried couple did not establish paternity at the time of birth then the Paternity Acknowledgment Form, mentioned above, may be completed any time before the child turns eighteen. The final possibility for establishing paternity is by Court Order. If both the father and the mother are unmarried, and are unwilling to sign an Acknowledgement, then this is the only option.
Establishing paternity by Court Order in the state of Florida
A Court action to establish paternity can be commenced by either parent. Fathers often file such actions so that they can establish custody and visitation. Mothers often file such actions in instances where the father is refusing to acknowledge parentage and/or is refusing to pay child support. The process in such cases is relatively straightforward.
The legal process in such a case will begin when the requesting parent files a Petition for Paternity. This Petition will be served on the opposing parent. The initiating parent will then typically file a request that the Court require genetic testing, and that if the test is positive, that an initial Order for custody and support be set. A hearing will be set for the request to be heard. At the time of the hearing, the Court will order that the alleged father undergo genetic testing to see if their DNA matches that of the child. A return hearing will be set to review the results of the test. If the test is negative (meaning that the individual is not the father) then the case is over. If the individual is found to be the father then the Court will enter a temporary order regarding custody, visitation, support, etc. If no agreement is reached between the parents, regarding a final time share Order, then the Court will schedule a trial date. The parties will then begin preparing for, and will attend, trial. This preparation and trial attendance is discussed more fully below. The point to take from this section of our guide is that the establishment of paternity, via the Court process, can happen quickly.
How Florida fathers (married or unmarried) can establish child custody in Melbourne and other areas
This section of our guide will discuss the process by which Florida fathers can establish custody in our state. This process will apply to dads whether they and the mother are married or unmarried. This section of our guide assumes that paternity has been established (view the foregoing section of our guide if paternity has yet to be established). We will now discuss both the process one faces in obtaining an initial Court Order as well as the need for a potential “reunification plan” if the father has been separated from the child for some time.
The process for fathers to obtain a child custody order
The process of obtaining a custody order in Florida begins by filing a Petition with the Court. Again, this is assuming that paternity has been established. The Petition is a legal document which specifically states what it is the initiating parent is requesting from the Court in terms of time share, visitation, support, etc. The Petition will be filed on the opposing parent who will then file a response. The parties will typically be required to attend a Mediation to see if they can resolve their differences. If no resolution can be reached then the matter will proceed to litigation.
One of the parents (typically the one who initiated the action) will file a Motion early in the proceedings. This Motion will be a request for the Court to issue a temporary ruling which will remain in place while the matter proceeds. Having this Order will give the parties a structure to follow in between the time at which the Motion is filed and trial. This structure will a) help to prevent conflict between the parties and b) give the respective sides a sense of normalcy while the case moves forward. In addition to issuing this preliminary ruling, the Court will also set a trial date relatively early in the process.
Each side will need to prepare for trial after the Court sets a date. An important part of trial preparation is the conducting of “discovery.” This is the process by which information is gained from the other side in a lawsuit. There are several tools available to a litigant so that they may gain such information. These tools include Interrogatories, which are written questions to which the other side must provide written answers. Additional tools include Requests for Production, which require the other side to provide records, documents, and other tangible items. Examples of such records can include medical documents, bank statements, phone records, emails, etc. Also, each side may conduct Depositions, which require the other party and other possible witnesses to give sworn testimony in the presence of a court reporter. Finally, Subpoenas may be used to acquire records and physical items from non-parties.
Family law litigants should understand the importance of discovery. Contrary to what one may see in legal based television shows, trials are not won with evidence that is unearthed at the last possible moment. They are, in fact, won by presenting evidence that is methodically collected through the discovery process. By retaining an attorney who is familiar with this process you can help to ensure that you have the evidence you need at trial.
The case will proceed to trial after the completion of discovery. The hearing will be a “bench trial,” meaning that there is no jury. The Judge will be the sole decider of facts. Each side will present their evidence and the party who initiated the case will have the opportunity to present “rebuttal” evidence. Each side will then make a closing statement. The Judge may issue his or her ruling shortly after the trial or, in some cases, it may take several days for an Order to be issued by the Court. Once the final Order is issued then the matter is concluded. The parties will have a child custody order which they will then be required to follow.
It is important to understand the complexity of the foregoing process. The rules of procedure must be followed. A failure to do so can result in a Parent’s initial Motion not being considered, the other side not being required to answer their discovery requests, or in evidence not being considered at trial. By retaining counsel, you help to ensure that your matter is handled correctly. Our Melbourne lawyer devotes her practice to family law matters and is able to assist in such cases. We regularly handle cases in both Brevard and Indian counties.
The Courts may issue a “reunification plan” due to parental alienation of the father
There are, sadly, instances in which a father has not been permitted to see his child in some time, if at all. These can include instances where the mother has concealed the existence of the child from the father, instances where the mother has absconded with the child, and more. In such instances, it can be detrimental to the child to simply place them in the equal care of a father with whom they are unfamiliar. The Court may, therefore, require a “reunification plan” in these types of instances.
A reunification plan is essentially what it sounds like. It is a process which the Court will lay out and is meant to re-acquaint the father and the child. Typically, visitation will be for short periods of time and may be in the presence of third-parties whom the Court have found to be trustworthy. Visitation and time share will typically increase over time until it reaches the point at which the Court has declared will constitute the final order. Judges may hold periodic status checks during the reunification process to see how matters are progressing. Each case is different and the type of plan the Court may, or may not, require will always depend on the specific facts of the case. It is strongly suggested that you retain a lawyer to assist you if your case involves parental alienation.
How Florida fathers can change child custody
It is not uncommon for fathers to need a change in their child custody arrangement. This need can come from the fact that the father is deserving of a greater time share. The mother may also be engaging in conduct which justifies the dad receiving primary custody. Whatever the situation, it is important to understand that dads cannot change custody simply because they want to. For the Court to grant a modification, one must show that circumstances have changed since the Court’s most recent order. It must also be shown that a modification would be in the child’s best interest. In this section of our guide we will discuss these requirements as well as the process for changing custody in the state of Florida.
Florida fathers can change custody by showing that changed circumstances impact a child’s best interest
When a Florida father wishes to modify their current child custody Order then they must show that circumstances have changed since the Court’s latest ruling. In other words, a parent may only raise issues which have occurred after the Court’s most recent custody Order. There is good reason for this as the changed circumstances requirement a) prevents parents from attempting to litigate the same issues repeatedly and b) encourages a parent to make all of their claims at the same time. Any issues raised by a parent, which occurred prior to the previous order, will not be considered by the Court.
Different types of facts can constitute “changed circumstances” and they do not have to be extreme. Suppose, for example, that the parents obtained their current custody Order before the child was school age and it contains no provisions for what happens when the child attends school. The parents live far apart and are not zoned for the same school district. For obvious reasons, a fifty-fifty time share will be problematic as the child reaches school age. If the parents cannot reach an agreement on a new custody order then the mere passage of time in this example will likely constitute changed circumstances. Other examples of changed circumstances can include a parent moving to a new location, a change in work hours, etc. Also, and obviously, changed circumstances can include extreme conduct such as drug use, criminal activity, and more.
If a case does involve changed circumstances of an extreme nature, then the Court will be more likely to change custody on the basis of the new circumstances alone. Consider the following examples. Suppose Mom occasionally drinks too much wine in the evening and, on occasion, is not able to assist the child with their homework. Such a circumstance, by itself, may not be enough to change custody. The father would also need to show other problems. These can include the child not doing well in school as a result of the mother’s negligence, and other areas where the Mother’s parenting is deficient. Now suppose that the evidence shows that the mother is a true alcoholic and is regularly endangering the child. This includes regularly driving drunk with the child in the car. Under these facts, the mother’s drinking alone may well justify a modification. While every case is going to be fact specific, it is important to remember that the more extreme the conduct then the more likely a Judge will be to change custody on the basis of the conduct alone.
If circumstances have changed since the last custodial Order then the Court will modify custody if a change would be in the best interest of the child. The factors which the Court will consider, when deciding what is in a child’s best interest, are discussed above in section 1(b) of this guide. As discussed in that section, the Court’s sole concern will be with protecting the child’s best interest. The Court will not modify custody simply because the parent wishes it or simply because a modification will be more convenient to the parent. To gain a better understanding of how the Court will view your particular circumstances, it is suggested that you speak with a family law lawyer as soon as possible.
The legal process for Florida fathers who wish to change their child custody Order
If a Florida father wishes to change their child custody Order then the first step is to file a Motion (also known as a “Supplemental Petition”) with the Court. This is a document in which the dad will spell out how circumstances have changed since the last custodial Order. The Motion will include exhibits which provide evidence of these changes. This filing will also discuss why the changed circumstances are impacting the best interest of the child and why custody should be changed. The Supplemental Petition will be mailed to the opposing parent along with a notice of the hearing date. The opposing parent will file an Opposition brief. The initial hearing will not be a trial. Each side will briefly state their arguments. If the Court finds that the Motion has merit, the Judge may make a temporary change in custody and set a trial date to determine if the change should become permanent. If the Court finds that the Motion lacks merit, then the matter will be closed with no change to the custody Order.
The process of litigating a custody change request is similar to the one described above, regarding the initial establishment of custody. Each side will use the discovery process to obtain relevant evidence and the Court will conduct a bench trial. The handling of such matters is highly complicated and it is important that you have experienced counsel to assist you.
There are instances in which the need to change child custody is immediate due to an emergency. Such instances can include dangerous drug use by the other parent. They can also include the parent engaging in conduct which endangers the child, such as driving drunk with the child in the car, engaging in criminal activity, abuse, and more. In such instances, the Court will often hear the request to change custody on an expedited basis. In fact, such a hearing may occur within a few days of the time that the Motion is filed. If you believe your son or daughter is in imminent danger then the first step is to call the police. If the matter can wait a day or two then it is important to call an attorney immediately so that counsel may take immediate action on your behalf.
How Florida fathers can deal with a mother who is withholding their child or denying visitation
There are several circumstances under which Florida fathers may find themselves being denied time with their child. These can include instances in which the mother regularly keeps the child for more than her share of Court Ordered time, instances in which mom refuses to allow the father to see their son or daughter at all, and they may even include instances in which the mother has fled with the child. This section of our guide will deal with each of these circumstances and will discuss the possibility of changing child custody due to such conduct.
How dads can deal with situations where the mom regularly denies time with the child and engages in parental alienation
There are instances in which a mom may be denying a dad time with his child to which he is entitled by Court Order. This can include situations in which the mother keeps the child past her regular time. Also, in extreme cases, it can include instances in which the mother refuses to return the child at all or has absconded with the child. The first of these circumstances can result in the mother being held in contempt of court. The latter can result in the Judge issuing a “Pickup Order” and the mother also being held in contempt of court. We will discuss each of these circumstances in turn.
If a mother is regularly denying a father his time with his child then it is possible to get the Court involved. If the mom is repeatedly violating the Judge’s custody Orders then the first step is for your attorney to contact her to resolve the matter. If a resolution cannot be reached then your counsel will file a request with the Court that the mother be held in contempt. The Court will schedule a hearing and the mother will be required to appear. The Court will require that she “show cause” as to why should not be found in contempt for her actions. A finding of contempt can include financial penalties, having to pay the father’s legal fees and, in extreme cases, jail time (although this is highly unlikely). A finding of contempt will also often include a warning to the mother that any further violations will result in a change of custody (assuming that the current situation does not already justify a modification). Judges often have little patience with those who do not follow their Orders. If you find yourself in such a situation then you should speak with counsel as soon as possible.
Fathers must understand that contempt proceedings are appropriate in instances where a mother is flagrantly violating the Court’s Orders. The Court will not be concerned with situations not stemming from bad intentions or malice. If, for example, a mom occasionally drops a child off thirty minutes late due to having to work overtime then the Court is unlikely to be concerned. If, by contrast, a mom consistently drops a child off several hours late, or even the next day, and has no good reason then a Court will likely take action. Also, extreme circumstances, such as a mother refusing to return the child at all, are instances in which one infraction of the Order will typically draw the ire of the Judge.
Some of the more extreme violations of a Court’s Orders involve a parent fleeing the state with the child. Florida law does not allow parents to move out of state, without permission, when a custody Order is in place. If this happens, the father may file a request with the Court for a “Pickup Order.” The Court will typically issue an Order which a) requires that the child be returned to the father, b) that the mother return to Florida, and c) that the mother appear in Court and show cause as to why she should not be found in contempt of court. If the mother has taken your child out of state without permission then it is important that you contact an attorney immediately. The longer you wait to contact counsel then, typically, the less likely the Court is to believe that the move occurred without your permission. The child custody lawyer in our Melbourne office handles such matters throughout Brevard County, Indian County, and in other Florida areas.
Florida fathers may be able to change custody on the grounds of being denied time with their child
A mother’s violation of a child custody order may be grounds for a father to modify the current custody arrangement. As explained above, one of the factors a Court considers is the extent to which a parent tries to maintain a positive relationship between their counterpart and the child. For obvious reasons, denying a father his time with the child goes against the idea of fostering a positive relationship. If the circumstances are extreme enough, then such conduct may, by itself, be grounds to change custody. If, however, the conduct does not justify a change in and of itself, it is still a factor which the Court will consider as part of a broader request to change time share.
Consider the following example. Mom has the child Monday through Friday and Dad has the child on weekends. The child, who is ten years old, is failing in school and has been exhibiting behavioral problems with his or her teachers. Also, even though Mom is required to drop the child off to Dad on Saturday Mornings, she semi-regularly does not drop the child off until Sunday. Under these circumstances, the totality of the circumstances would likely justify changing custody so that Dad will have more time with the child. Mom is not meeting the child’s educational needs and she is not working to foster a relationship between the father and the child. Remember, however, that how the Court will rule in any given situation will always be fact dependent.
The process for changing child custody due to violations of a custody Order is the same as the process described earlier in this guide. When submitting your Supplemental Petition to the Court, it is important that you include evidence of the violations. This evidence should demonstrate that you are not receiving your time with the child and that the violations are willful. Such evidence may include phone records, email, text records, etc. An experienced attorney can help you in determining which evidence will be most helpful in your case.
Fathers in Melbourne or other parts of Florida should contact a child custody lawyer regarding their case
If you are a father and are in need of assistance in a family law matter then it is important that you contact an attorney as soon as possible. As explained earlier in this guide, the longer you allow the situation to remain as is then, quite often, the more likely the Court is to consider the matter an acceptable “status quo.” By contacting counsel, you help to ensure that your rights remain protected.
Our Melbourne child custody lawyer devotes her practice to domestic relations law and we regularly represent dads in Court. We pride ourselves on providing quality and aggressive representation. We understand that this is a serious time in your life and we will give your case the attention it deserves. Contact us today. Our office also services 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.