2023 Update: New Laws For Florida Timesharing (Formerly Called Visitation)

Sydney Mitchell:

Hi. My name is Sydney Mitchell.

Matthew Brickman:

Hi, I’m Matthew Brickman, Florida Supreme court mediator. Welcome to the Mediate This! Podcast where we discuss everything mediation and conflict resolution.

So it’s been a pretty exciting year in 2023 in the state of Florida with regards to family law, as there has been a major overhaul in just about every aspect when it comes to family law. And as a practitioner, I’m very excited for the changes. In this particular episode, I am going to talk about, um, the changes under Senate Bill 1292 as it relates to parenting plans. Um, I know that I have gone through parenting plans in previous episodes talking about, uh, shared parental responsibility and decision making. And, um, so for the most part, all of that still remains the same. But I am going to highlight in this episode changes to, uh, time sharing and parental responsibility and decision making under the new statute, which, uh, is in effect as of July 1st, 2023. So first off, um, let’s just talk about the fact that if you need legal advice when it comes to your existing parenting plan, potential modification, um, or if you are going to be establishing a parenting plan and you have specific questions, please get legal advice.

This podcast in no way is meant to be legal advice. It is meant to simply be informative and to let you know what’s going on. But for your particular case, if you have a specific question, please reach out to an attorney. If you’re not sure who to reach out to, um, I have worked with over 720 attorneys, uh, email me and I can always give you a referral. Um, my email, uh, just for quick reference is M Brickman. That’s M as in Matthew. So MBrickman@iChatMediation.com. And I would be happy to give you a referral. So let’s just start looking at the changes in the statute. Uh, we’re looking at chapter 61, um, of Florida statute. And so it says, first that the court shall determine all matters relating to parenting and timesharing of each minor child of the parties in accordance with the best interest of the child.

That is not changed. It’s always best interest of the child. The court is not interested in best interest of mom or dad. Um, this is best interest of the child. Um, and so it’s, um, let’s talk about what did the law say prior to this change and what does it say now and what does that mean? So this is not changed. This part has not changed. It is public policy in this state that each minor child has frequent 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, responsibilities and joys of child rearing. That is not changed. That is still the same in the state of Florida public policy is that the children have frequent contact with both parents. It is not that both parents will have frequent contact with their children.

The children are entitled to both mom and dad. Um, as a mediator, a lot of times in mediation I get, um, a, a parent that says, well, I’ll give the other parent this time, or I’ll give them these days, thank you for playing. But that is not how it works. The children are entitled to both parents. Now, some parents say to me, oh, so my kids have a say, they can dictate where they wanna go. No children have an opinion, not a say. So they do. Um, you know, best interest of the chil children is evaluated. But think of it like this Mom and dad, you are the CEOs of the company. You do not let your employees dictate to the CEOs how to run the company. The inmates do not run the asylum. There’s a suggestion box, and yeah, fill up the suggestion box with your input.

I always used to tell my kids, your input is valuable to me. I don’t wanna unilaterally make decisions regarding your life, but just know that it’s an opinion. I still have the final say, but in Florida, each minor child is entitled to frequent continuing contact with both parents. Now, um, what it used to say was that there was no, uh, presumption for or against the father or the mother of the child or for or against any specific timesharing of the minor child. So, um, when establishing there was no presumption for or against a mom or a dad, that’s changed. It now says, unless otherwise, provided in this section or agreed to by the parties, there is a rebuttable presumption that equal time sharing of a minor child is in the best interest of the minor child. So does that mean it’s an automatic 50 50?

No. Um, it says that there is a rebuttable presumption. Now, what does presumption mean? Because there, in the past they had, uh, the legislature and some of the previous bills talked about premise versus presumption. And so let’s go and look at the Oxford Dictionary definition of presumption. So it is an idea that is taken to be true and often used as a basis for other ideas, although it is not known for certain, um, presumption means an attitude or belief dictated by probability. It’s an assumption. The ground reason or evidence lending probability to a belief, it’s a legal inference as to the existence or truth of a fact, not certainly known that is drawn from the known or proved existence of some other fact. So I guess as a mediator, yes, it is a presumption of 50 50. That’s our starting point, but it is rebuttable, which means that if you want to spend the money with your attorneys, or if you wanna try to do it yourself, and you wanna go to court and you wanna try to meet the factors to show that 50 50 is not in the best interest of the child and should not be the starting point, if you’ve got the time and money, you can do that.

But unless you can overcome that rebuttable presumption, it is equal time sharing that is the starting point. Um, so then it continues in the statute. To rebut this presumption, a party must prove by a preponderance of the evidence that equal timesharing is not in the best interest of the minor child. Now, preponderance of evidence is the lowest standard of evidence in a court of law. Um, so if you can prove that it’s not in the best interest, and you’ve got the time and you’ve got the money, well then you can certainly have your chance. If not, well then there is a presumption that it’s 50 50. Um, it keeps saying, except when a time sharing schedule is agreed to by the parties and approved by the court, the court shall evaluate all the factors set forth in subsection three and make specific written findings of fact when creating or modifying a timesharing schedule.

So it starts out says, Hey, look, you know what, if the parties want to agree to it and then great, um, it’ll be approved by the court. But if the court has to make an evaluation, well then they’ve gotta go through all the factors in subsection three and must make specific written findings a fact. So it’s not allegations. You know, a parent can’t just make allegations, throw things against the wall that is not substantiated by fact and hope that then they can, you know, deviate from the presumption of 50 50. So what are those factors? So if you look in the statute, there’s the factors in chapter 61 A through T. So there’s a number of factors. So what are they? Well, let’s read ’em. So a number one, the demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship to honor the timesharing schedule and to be reasonable when changes are required.

That’s the first factor. Number two, the anticipated division of parental responsibilities after litigation, including the extent to which parental responsibilities will be dedicated delegated to third parties. Now, keep in mind that parental responsibility and decision-making has not changed. It is still a, um, shared parental. That’s where it starts. The court shall order that parental responsibility be shared unless the court finds that shared parental responsibility be detrimental. Again, you’re having to go to court to have an entire hearing or trial simply on that factor, um, because you’ve got two factors of timesharing or, or sorry, of, of a parenting plan. You’ve got decision making and timesharing. So decision making simply says, Hey, we are the two CEOs of this company and we have 50 50 say when it comes to running the company. That’s decision making. Then you have time sharing, time sharing simply is, okay, which c e o on what day of the week out of the year is going into the office to run the company.

So that’s time sharing. We have to designate a c e O to go in and run the company. You can’t just let the company run itself without a c e O being in charge. So that’s time sharing. So let’s go to number three C. The demonstrated capacity and disposition of each parent to determine, consider an act upon the needs of the child as opposed to the needs or desires of the parent. So this goes back to what I was saying before, that your children are entitled to you, you are not in child entitled to your child. So they will look and see, well, are you looking at the best needs of the child or are you looking at your own selfish desires? Because that can be a factor for figuring out best interests of the child. The next one, d, the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.

Next, the geographic viability of the parenting plan with specific attention paid to the needs of school-aged children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of either parent with the child. So this one’s interesting because in Florida we have a relocation statute that says that the parents, uh, would have to get permission from the other parent or court order in order to move more than 50 miles away. Well, if there’s a presumption of equal time sharing, if you’re more than 50 miles from the other parent, well then that’s just gonna create hardship. And is that in the best interest of the child to be in a car back and forth? Well, you know, there’s, that’s one of the factors here that can be used to determine whether or not equal is in the best interest of the child.

Next, the moral fitness of the parents. Next, the mental and physical health of the parents. Next, the home, school and community record of the child. Next, the reasonable preference of the child if the court deems the child to be of sufficient intelligence, understanding and experience to express a preference. Um, at the time of this recording, I have been mediating for, um, almost two decades. Um, and I’ve only seen three instances. I think that I can at the moment, I can think of off the top of my head where a judge said, yes, we will allow a child to testify. Um, this is a rarity. Um, but the preference of the child usually comes in with guardian ad litems, um, or with a parenting coordinator. Um, that’s usually when the preference of the child comes in. Rarely does a judge let a child come in because that can do irreparable harm to the parent-child relationship, to bring a child to come into court, to have to choose a mom or a dad, um, what they actually want.

But it is, uh, one of the factors. Okay, moving on. J The demonstrated knowledge, capacity and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to the child’s friends, teachers, medical care providers, daily activities, um, favorite things. Now, I will tell you, um, there are a lot of times, um, in a paternity action where historically, you know, the mothers bore the child. So they are the presumptive parent, um, until the father is adjudicated the father. And so they may not know these things, but they weren’t, they didn’t have to know these things. The mother didn’t have to share these things. Um, or maybe in a traditional marriage, maybe their roles that they assigned each other. Maybe the mother was a stay-at-home mom. And so her role was to do these things, which is, you know, get the children to their play dates and do parent-teacher conferences, take the children to the doctors, deal with their daily activities.

Maybe the father, uh, worked so that the mother could do that. So he wasn’t as involved in those things. It does not mean that those roles, um, are going to be the same after a divorce action, um, or a paternity action because, you know, mom may have to go and get a job and then dad may have to be involved and take the children to school and take ’em to their doctors. Uh, but it is one of the factors in the statute, uh, that they will look at next k the demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, daily schedules for homework, meals and bedtimes. Um, we deal with most of that in a parenting plan. Uh, but under a day-to-day decision making in a parenting plan, each parent can make their own decisions regarding the day-to-day care and control of the child when the child is with that parent without any interference from the other parent.

So they can set up their own rules in their own homes, um, without any interference, but it is in the child’s best interest if the parents can get on the same page, but they don’t have to be. Um, next l the demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child and the willingness of each parent to adopt a unified front on all major issues when dealing with the child. Um, yeah, it’s important for the parents to come together because again, they’re the CEOs of this company. No, c e o can go rogue and just unilaterally be making changes. You will destroy the company. It the company needs a unified front. Um, and so, you know, major issues would be health, education, the welfare of the child that’s shared parental responsibility and decision making.

Um, and we’ve got all the rules. Uh, with that you can go back and listen to the Parenting plan podcast episode and hear about that. Um, and so let’s go on then to m the next factor. Evidence of domestic violence, sexual violence, child abuse, child abandonment, child neglect, regardless of whether a prior or pending action relating to those issues has been brought. If the court accepts evidence of prior or pending actions regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect, the court must specifically acknowledge in writing that such evidence was considered when evaluating the best interest of the child. Keep in mind, all of these are the factors that the court must find specific in writing that these occurred, um, to deviate from 50 50. Next evidence that either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect.

The next factor, the particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties. So, you know, was there a nanny? Did a parent have the grandparents assisting? Did they have paramours? You know, I mean, were the parents doing it themselves? How was the tasks being performed? They will look at that. That’s a factor. The demonstrated capacity. Next is the demonstrated capacity and disposition of each parent to participate and be involved in the child’s school and extracurricular activities. Next, the demonstrated capacity and disposition of each parent to maintain an environment for the child, which is free from substance abuse. Next, the capacity and disposition of each parent to protect the child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child.

This happens a lot because, uh, what I find as a mediator is a lot of times a parent wants their child to like them. They don’t wanna be the parent, they wanna be their friend. And I’ve heard so many times, oh, my child is my best friend. Or you hear from a child, my parent is my best friend. While it’s nice that, that you like your child and you get along your job is to be a parent, not be their best friend. They will have plenty of friends in their life. They need a parent, they need rules, they need boundaries, they need protection. And you cannot be sharing your litigation experiences or, oh, well, your mom or your dad hasn’t been paying child support. It’s just so hard without the support, you know, like, no, you’re not allowed to be discussing this with your child because that is a violation of the statute.

It’s a factor in determining, uh, all of this. And it’s also in shared parental responsibility and decision making. It’s, it’s not good at all. Okay, uh, the last two, uh, the developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs. And then finally, any other factor that is relevant to the determination of a specific parenting plan, including the timesharing schedule. So all of these, the, the, you know, if you do want to try to deviate from the presumption of 50 50, you can, you can pay your attorney to go into court, but you’ve gotta go through all these factors, A through t to try to convince the court that sh that equal time sharing is not a good basis to start at. It’s not the presumption it shouldn’t be there, it’s not applicable for this particular case.

And if the court can make specific written findings, well then fine, you might not have a presumption of 50 50 time sharing. Um, so lemme give you an example. I had, and, and this is before the law even became the law, uh, this was a number of years ago. I think this was probably 20 17, 20 18. I had a mom and dad come into mediation. They actually both wanted 50 50. They were so complimentary of each other. I actually asked them, why are you even getting divorced? And they both said, look, not the best spouse, but great mom or great father. And so they wanted 50 50. The problem though was they lived over an hour and a half away from each other. Um, logistically it wasn’t possible. We tried. Oh, we actually tried, um, tried, you know, one of them has to be the school parent.

The other one, of course is the non-school parent. So we tried, for example, um, I think in this particular case, the child was gonna live with the mother, and so the father would have timesharing. We tried giving the father every single Friday and Saturday night with a return on Sunday, every single spring break, the entire summer, except for the last night prior to the resumption of school, the entire Thanksgiving break, the entire winter break, and all of the long holiday weekends. There just wasn’t enough time to create a 50 50 schedule. And of course, one of the factors here, uh, that we talked about was the geographic viability of the parenting plan geographically based on where they lived. 50 50 wasn’t possible. Um, let’s say for example, uh, recently I had a case where the mother lived in another state. The father lived in the state of Florida, the children lived in the state of Florida, 50 50 is not geographically possible.

It’s, it’s just not possible. Um, so those are two examples just on geographic and logistics, where one was in the same state, one is out of state, and yeah, having a presumption of 50 50 is great, but it’s not happening. Um, so one other very important change in chapter 61 when it comes to the parenting plan, um, is about, um, the unanticipated change in circumstance. So in the beginning of the statute, it says that the court shall determine all matters relating to the parenting plan and timesharing of each minor child and the parties in accordance with best interest of the child, and in accordance with the Uniform Child custody jurisdiction and Enforcement Act, or we call that for short, the U C C J E A, except that modification of a parenting plan and timesharing schedule requires a showing of a substantial material and unanticipated change of circumstances.

So what is substantial? Uh, I don’t really know. I mean, that’s up to judicial discretion. What is material sort of, kind of up to judicial discretion, unanticipated change in circumstance? This has been, um, huge. I guess the word is it, it it’s a gatekeeper. It’s a preventative, it was a preventative measure. Um, it set a really high bar for being able to modify because say for example, that, you know, a child was eight when they started this plan. Um, but now when they’re doing a modification, he’s 15. Well, oh, well, you know, his needs have changed. Well, no, you can’t modify just because, well, he’s older because guess what? This, that’s an anticipated change. You knew when you created this, that the child was going to be older, or let’s say for example, um, that a parent lives, you know, that, that the parents get divorced, one parent lives out of state, they’re working, and so yeah, they’ve got an outta state schedule, but let’s say that, um, they get laid off, or let’s say that they’re, that they were, you know, on job assignment and now it changes and they move, um, and they come closer to the child.

Well, it was anticipated that eventually their job may end and that they may move. And so, you know, could they modify? It was hard because they had to show, well, no, it was an, it was anticipated. Well, one of the changes, um, and from all that I have read and heard, this was really, uh, the thought process was, uh, surrounding military families. Because let’s say for example that, you know, parents get divorced, the father’s in the military, he’s stationed, say, in New York, the mother and the children live in Florida, and let’s say that now, you know, um, let’s, let’s just say hypothetically he doesn’t retire, but he gets medically discharged. So he is like, look, I can move anywhere in the world. I’m medically discharged. I’m no longer subject to the United States military. So you know what, I’m gonna move to Florida and I’m gonna move close to my kids because I want to have a closer relationship, better relationship with my children.

So if he moved to the state of Florida under the previous, uh, laws, well, it was, you know, it could be argued that it was anticipated that one day he would no longer be in the military. And so is that grounds for a modification? Well, possibly not. And so he had a hard time, like he would move back and be like, I wanna see my kids. And of course, you know, based on all the other factors we, we we read through, the mother may say, Hey, look, I’m the primary caregiver. This is gonna disrupt their normalcy and stability. You weren’t involved with their teachers and you don’t know their doctors. And, you know, may actually hit a lot of those factors that we talked about. Well, what has changed now as of July 1st, 2023, the statute says if the parents of a child are residing greater than 50 miles apart at the time of the entry of the last order, establishing timesharing and a parent moves within 50 miles of the other parent, that move may be considered a substantial and material change in circumstances for the purposes of modification to the timesharing schedule.

So long as there is a determination that the modification is in the best interest of the child. And of course, you then still have to go through a through t. You know, you don’t want, oh, dad was dishonorably charged because of domestic violence and constant DUIs and drug use. I mean, is that in the best interest of the child now to have 50 50? Um, so you know, the factors are still there, but let’s say that, look, there are no issues. Good, good guy. Maybe not the greatest of husbands, but good guy, good parent. And, you know, he gets discharged, he leaves the military, he retires, he wants to move closer to his children. Now there is no unanticipated change in circumstance blocking a modification. When he moves back, he can modify and be able to create a new parenting plan. And again, as we have already discussed, the presumption will be 50 50 unless there’s a rebuttable presumption hitting all of the factors and specific written findings of the court to say, no, this is not in the best interest of the child. So that’s a major overhaul when it comes to the parenting plans in the state of Florida. If you’ve got any specific questions, not legal advice, please reach out and ask me. Uh, but if you do need legal advice regarding your own specific case, whether that is to create or to modify, then please get some legal advice. Um, and I look forward to hopefully mediating your case with you in the future.

Matthew Brickman:
Occasionally Sydney and I will be releasing Q & A bonus episodes where we will answer questions and give you a personal shout out.

Sydney Mitchell:
If you have a comment or question regarding anything that we discuss, email us at info@ichatmediation.com that’s info@ichatmediation.com and stay tuned to hear your shout out and have your question answered here on the show.

Matthew Brickman:

For more information about my services or to schedule your mediation with me, either in person or using my iChatMediation Virtual Platform built by Cisco Communications. Visit me online at www.iMediateInc.com. Call me at 561-262-9121, Toll-Free at 877-822-1479 or email me at MBrickman@iChatMediation.com.