Child Custody

In child custody matters, fathers in our society have been at the back of the proverbial bus for generations.  Notably, in other cultures, fathers actually receive preferential treatment in child custody matters.

In the United States, most fathers simply want an equal opportunity to share time with their children.  This is rarely viewed as a controversial demand.  Florida law governing child custody matters is now at least written in a gender neutral manner.  But, the quest for fair treatment of fathers in the family court system very much remains a “civil rights” issue.

Courts are the Source of Injustice for Fathers

Ironically, for many disadvantaged groups, the courts have been leaders in implementing equality.  Many of the most famous legal decisions of the last 75 years were those granting equal rights to groups that were not afforded the same opportunity as others on the basis of race, religion, or gender.

For fathers, rather than helping to remedy injustice, the family court system actually metes out the inequality, all in the supposed best interest of the children.  Many legal decisions by Florida appellate and trial courts have frustrated attempts by fathers to spend more time with their children.

Abolition of the Tender Years Doctrine Favoring Mothers

In 1982, the Florida legislature abolished the “tender years” doctrine, which expressly favored mothers in custody disputes.  The courts, however, were reticent to “let go” of the judicially created presumption against fathers.  Judges had been inundated by expert opinions that, for children of divorce, their best interests were served when they spent the vast majority of time with one parent, typically the mother.  Of course, scientists also once told us that cigarettes were healthy.

In response, the Florida Legislature further clarified its intent to abolish the tender years doctrine by amending section 61.13, Florida Statutes, as follows: “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.”

Nevertheless, some Florida courts continued to apply the tender years doctrine, even in cases where the minor child had two loving and nurturing parents who were otherwise equally fit candidates.

When the express presumption against mothers was finally put to rest, Florida’s courts turned to a different presumption to defeat fathers seeking more time with their children.

The Presumption Against Rotating Custody

The next judicially created legal doctrine created to prevent fathers from having more time with their children was the presumption against rotating custody.  “Rotating custody” was loosely defined to include any arrangement where both parents share substantial time with the children.  In other words, judges created a legal presumption against both parents sharing time equally or nearly equally with their children.

In 1997, the legislature was again forced to step in, amending section 61.121, Florida Statutes, to state that the “court may order rotating custody if the court finds that the rotating custody will be in the best interests of the child.”  Two years later, a Florida appellate court ruled in Mandell v. Mandell, 741 So. 2d 617 (Fla. 2d DCA 1999), that the forgoing language was not sufficiently clear to abolish the judicially created presumption against rotating custody.  Specifically, the court held that the legislature either “did not intend to set aside the presumption, or, if it did, it failed to appropriately implement its intent.”  

Many courts continued to apply the presumption against rotating custody for more than a decade after the Florida legislature amended the statute to permit rotating custody.  In Corey v. Corey, 29 So. 3d 315, 320 (Fla. 3d DCA 2009), the Third District Court of Appeals finally recognized that courts were ignoring the plan language of the statute:

In 1997, the Legislature chose to put rotating custody on the same level playing field as other types of custody arrangements—all of which are evaluated through the lens of the best interest of the child. This legislative action changed the judicially-created presumption against rotating custody. If the Legislature had intended to continue the long-standing presumption against rotating custody, it would have stated so in the statute. Instead, the Legislature, in enacting section 61.121, expressly stated that the only standard for ordering rotating custody is whether it is in the best interest of the child.

Put another way, after the 1997 Legislative action, no presumption—positive or negative—attaches to rotating custody in comparison to other permissible custody arrangements. As such, “[w]here, as here, the language of the statute is clear and unambiguous and conveys a clear and definite meaning, the statute should be given its plain and obvious meaning.” City of Miami v. Valdez, 847 So.2d 1005, 1008 (Fla. 3d DCA 2003). Courts that continue to impose a higher burden on a parent seeking rotating custody improperly displace the Legislature’s decision with their own judicial policy preference.

The Third District Court of Appeal’s decision in Corey would have virtually no impact, however, because the Legislature had already passed a massive overhaul to the Florida laws governing child custody.

Overhaul of the Florida Child Custody Laws

In 2008, the Florida legislature passed sweeping changes to the Florida custody laws.

Section 61.13, Florida Statutes, now expressly states that Florida’s public policy requires “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.” 

The new law also stated that there would be “no presumption for or against the father or mother of the child or for or against any specific time-sharing schedule when creating or modifying the parenting plan of the child.” 

The Legislature even completely eliminated the concept of awarding “custody” to one parent or the other. Instead, courts were required to create parenting plans that provided detailed time-sharing schedules for the children.   

When the laws changed, the Family Law Section of the Florida Bar was quick to point out that the new laws did not create any presumption of equal time-sharing.  The courts were instead required to allocate time-sharing between the parents based on the consideration of 20 Florida Child Custody Factors.

The Aftermath of the New Custody Laws

Not surprisingly, courts have continued to show preferential treatment to mothers. Absent drug abuse, alcoholism, abandonment, or mental health issues, courts almost never enter a parenting plan that requires children to spend every other weekend with their mother.  Yet, many judges will not hesitate to order that children spend every other weekend with their father, even when the father has played nothing but a loving and supportive role in the lives of the children.  In the family courts, fathers are convicted of divorce.

Efforts at Further Child Custody Reform

Presumably as a result of this continued inequality, the Florida legislature took the drastic step of passing a new law in 2013 that created the first custody presumption that actually favored fathers.

Specifically, the legislature passed a law (Florida Senate Bill 718) that created a presumption of equal time-sharing for all parents, except where time-sharing would be detrimental to the child(ren) due to  one of the following:  (a) a risk of child abuse, (b) clear and convincing evidence of extenuating circumstances, (c) a parent is incarcerated, (d) the distance between the parents’ residences makes equal time-sharing impracticable, (e) a parent does not request equal time-sharing, or (f) the existence of a permanent injunction or domestic violence.

Senate Bill 718 was vetoed by Governor Rick Scott.  So, the fight continues for fathers to be able to share substantial time with their children.  At the present time, there remains no presumption in favor of equal time-sharing.  And, fathers still find themselves at a disadvantage in Florida family courts.

But, times are changing.  And, courts are slowly beginning to recognize the massive amount of literature and data that shows children do better in school and life when they have substantial involvement from two parents.

By Richard J. Mockler


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