Area of Law:
Since child custody laws are regulated by the individual states, the laws can vary significantly from state to state. However, there are some general concepts that anyone with children should be aware of. In Florida, the determining factors as to who shall maintain custody of a child are laid out in 61.13(3) of the Florida Statutory Code.
When it comes to child custody, the court shall consider the following factors as well as any others that it deems relevant: (1) the likelihood of the parent to give the child frequent and continual contact with the other parent; (2) the existing emotional bonds between the child and respective parents; (3) the financial capacity of the parents to provide the child with necessities; (4) the length of time the child has lived in the current environment and the desirability to maintain continuity; (5) the permanence of the existing or proposed family home; (6) the moral fitness of the parents; (7) the mental and physical health of the parents; (8) the home, school, and community record of the child; (9) the reasonable preference of the child depending on his or her age, maturity, and intelligence; and (10) any evidence of domestic violence or child abuse.
Types of Custody
Legal Custody refers to the right and responsibility of a parent to make decisions relating to the health, education, and general welfare of his or her child. This means that the parent who has legal custody will choose where the child will go to school, what religion he or she is exposed to, and any and all medical decisions.
Some unmarried couples have joint legal custody over their children. This means that both parents to whom the joint legal custody refers have the legal authority to make such decisions.
Physical Custody refers mostly to the right and responsibility to choose where the child will live. The parent who has physical custody is responsible for the day to day care of the child, but it should be noted that the non-custodial parent also has the responsibility to provide financial support, which may be judicially mandated in a courtroom. The non-custodial parent will also have visitation rights.
Joint physical custody is a situation where a child maintains two residences – one with each parent. There is generally a close to equal division of time that the child spends with each parent; however, careers and other considerations sometimes make that impractical.
One of the most common conflicts to arise when dealing with child custody is when one parent wants to relocate with the child. It may be the case that the custodial parent has a career opportunity or a new relationship that leads them to a distant location. When this type of situation occurs, there are several legal considerations to take into account.
First and foremost, the “best interest of the child” standard always applies in any custodial proceedings, and really in any dispute that will affect the welfare of the child. With the issue of relocation, the burden is always on the relocating parent to show that the move serves the best interest of the child.
In addition to the "best interest of the child" standard, the court factors in several other aspects when considering relocation matters. If the child is both old enough and mature enough to comprehend the decision, then his or her opinion will be taken into account. Also, a move that is over a shorter distance will be more likely to receive the court's approval than a move that is across the county. Another obvious consideration is the actual reason for the move. If the parent is moving because of a great career opportunity, the likelihood that the court will show approval is higher than if the move is primarily to suit the relocating parent’s new romantic relationship.
A relocating parent should do everything in his or her power to accommodate the non-relocating parent. Courts do not look favorably upon deceit and withholding information in situations like this. Because the court is primarily concerned with the child's well being, the relocating parent needs to have a plan for the child in the proposed, new location involving schools, day care, and most importantly, the means to maintain contact with the non-relocating parent.
Because of the variable nature of child custody battles, there is never a general answer that can be applied to every situation. There are many free Florida resources that can help you better educate yourself concerning how to approach your particular situation. Click here to find a child custody attorney in your area.