As early as 2004, the Family Law Section of the Florida Bar started work to overhaul the state’s child custody laws to eliminate the concept of awarding “custody” to one parent and provide more equal rights to both parents. Florida law at that time provided an express preference in favor of mothers for young children, and in practice there was a widespread judicial preference in favor of mothers regardless of the child’s age. In 2008, the Florida Legislature adopted what was supposed to be ground-breaking legislation to abolish the traditional custody system and to eliminate express legal preferences in favor of mothers.
The new legislation embraced the concepts of time-sharing and shared parental responsibility in Florida, and the law provided an express legal presumption that parents should share parental responsibility. Shared parental responsibility requires parents to confer and jointly make major decisions affecting a child’s life, such as educational and medical decisions. Courts quickly followed the law regarding shared parental responsibility, with a vast majority of cases awarding parents shared parental responsibility for both parents.
No similar presumption was enacted regarding time-sharing. Instead, the statute provides that “there is 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.” This left courts to determine how much time children should spend with each parent. Some counties even continued to embrace “standard” parenting plans that routinely established majority timesharing in favor of one parent, regardless of whether the evidence might have supported equal time-sharing. Certain judges still announce in open court that they will not award equal time-sharing. Other courts make special inquiries of the parents, for example asking the mother if she is “sure” that she agrees to the father having equal time-sharing. Some courts in the Sixth Judicial Circuit have even forced parents who agreed to equal time-sharing to consent to a special provision that allows the court to change the schedule without finding the otherwise requisite substantial change in circumstances.
These practices and societal trends favoring fathers recently spurred additional legislative action. On June 27, 2023, the Florida Governor signed HB 1301, which creates a presumption in favor of equal time-sharing for both parents. This law goes into effect July 1, 2023. The new legislation will result in a rebuttable presumption that equal time-sharing is in the child’s best interests. To rebut this presumption, a party must prove by a preponderance of the evidence that equal time-sharing is not in the child’s best interests.
The obvious question is how this new presumption is likely to be applied in the courts. It appears that the Legislature left ample room for courts to continue exercising discretion when establishing parenting plans for children. To deviate from the presumptive equal time-sharing, a trial court need only find that doing so is in the best interests of the child. The Legislature did not limit deviations to any specific fact patterns, such as distance between the parties, violence, or substance abuse. Nor does the law require any heightened level of proof, such as clear and convincing evidence. The message from the Florida Legislature, however, is clear that courts are to start any determination with a presumption in favor of equal time-sharing. This is exactly the opposite of how many Florida courts currently operate, where the scales of justice have been inexplicably weighted heavily in favor of mothers, first expressly under the law and then overtly in practice.
At this point, the state of the law is hopefully such that courts are still permitted to exercise discretion in each case with clearer legal guidance that Florida law, public policy, and the best interests of the child presumptively favor equal time-sharing with both parents.