How to File for Joint Custody in Florida
The Florida family courts generally award joint custody unless doing so would potentially harm the child. The O’Mara Law Group is a reputable child custody law firm with comprehensive experience in joint custody cases. We provide legal advice, mediation, and strong advocacy in court.
Written and edited by our team of expert legal content writers and reviewed and approved by Attorney Mark O’Mara
Content last updated on: September 22, 2023
The Florida court system determines custody based on the best interests of the child. The law imposes a rebuttable presumption that it is in the child’s best interest to have regular, continuing contact with both parents following a divorce.
Without an attorney, the Florida joint custody laws can be confusing, and you could miss out on valuable time with your child. Our Orlando divorce lawyers at the O’Mara Law Group can help you understand how the legal process works and provide skillful representation to ensure you receive the best possible outcome.
Hiring O'Mara Law Group in Joint Custody Cases
When you hire the O’Mara Law Group to assist you with your child custody case, you can count on us to provide effective, vigorous representation. We have been helping families navigate the complexities of joint custody for more than 30 years, and our satisfied clients attest that we give personalized, attentive service to every case.
Our founder, Mark O’Mara, is a Board Certified Family Law attorney and a Supreme Court-Certified Family mediator. He has earned the coveted Martindale-Hubbell AV Preeminent rating for excellence in professional service, and the National Trial Lawyers recognize him as one of the top 100 trial lawyers in the state.
Legal Requirements for Filing for Joint Custody in Florida
Joint custody in Florida is awarded on two levels: legal custody and physical custody. These are officially known as parental responsibility and parenting time, respectively. The court presumes equal parental responsibility is in the best interest of the child, but not necessarily equal parenting time. As a result, it is possible to receive limited visitation while obtaining equal legal custody.
A custody arrangement stemming from the parents’ agreement is considered superior because courts view them as more effective in serving the child’s best interests. As a result, the court may order formal or informal dispute resolution services to facilitate a parental agreement.
If an agreement is reached, you must provide the details in the Parenting Plan Agreement. You can use the form provided by the court or a similar form provided by your lawyer.
A Parenting Plan Agreement is a written agreement that describes all aspects of how parenting responsibilities will be shared. The Parenting Plan Agreement must include the following at a minimum:
- The time-sharing schedule
- How the overall responsibilities and daily tasks of bringing up the child will be shared
- Who will be responsible for health care, school-related matters, and other concerns affecting the child
- Which parent’s address will be used to determine school district boundaries
- The methods and technologies by which each parent will communicate with the child
The Parenting Plan Agreement must be submitted to the court with both of your signatures. If you cannot reach an agreement, you may submit a proposed agreement detailing your wishes. Although the court will consider the parents’ preferences, the child’s best interests outweigh those.
Legal Process for Filing for Joint Custody
The custody process in Florida comprises a series of steps aimed at helping the court understand the family dynamics. The proceedings are designed to ensure the court can accurately determine the child’s best interests. The process works as follows:
- File Your custody petition in the circuit court in the county where you or your child resides.
- Attempt to reach an agreement with the other parent.
- If no agreement is reached, enter dispute resolution voluntarily or by court order.
- If an agreement is reached, sign the form with the other parent before a notary.
- File the parenting plan with the clerk of the circuit court.
- If no agreement is reached, file a proposed parenting plan with the court.
- If applicable, gather evidence to support the unfitness of the other parent.
- Attend the trial.
Appointment of a Guardian Ad Litem
If your case is complex and tensions run high, the court may appoint a guardian ad litem. A guardian ad litem is a volunteer who functions as the child’s “next friend” and investigates the child’s best interests on the court’s behalf. If warranted, the court may appoint a lawyer for your child. But that lawyer and the guardian ad litem cannot be the same person.
The guardian ad litem’s investigation may include inquiries into your and your child’s backgrounds. This can include acquiring medical and school records, among other things. The guardian ad litem may also interview your child and petition the court to order psychological evaluations of the parents or child.
Why You Need a Joint Custody Lawyer
Everything you say and do inside and outside the courtroom can be used against you in court. Your ex may hire a private investigator or resort to other tactics to unearth information to use against you or elicit an overreaction from you in court. If successful, these tactics could jeopardize your joint custody of your child.
In addition, if you file documents incorrectly or miss a deadline to answer a petition or counterpetition, you can lose custody. Custody determinations by the court are permanent and cannot be modified without a qualifying change in circumstances.
There is too much at stake to leave the fate of your parent-child relationship to chance. Our experienced contested divorce lawyers can help you present a positive image to the court, speak on your behalf, and defend you against accusations in a manner that helps your case.
Joint Custody Dispute Resolution
The dispute resolution process may entail mediation or parenting coordination. These may be initiated voluntarily or by order of the court. If an agreement is reached through either process, the court will review the agreement. If approved, it functions as a binding court order.
Mediation is an informal dispute resolution process during which the parents meet with a neutral third party, known as a mediator. A family mediator’s role is to foster compromise to help forge an agreement.
Family mediators do not actively contribute to the conversation other than to facilitate the discussion. Any agreement stemming from mediation is created solely by the parents. If one is reached, the mediator prepares a consent order and submits it to the parents and their attorneys to review. Once approved, it is submitted to the court for approval.
Parenting coordination is a formal dispute resolution process in which a neutral third party, known as a parenting coordinator, assists the parents in coming to an agreement. Parenting coordinators are mental health professionals who play a more active role in the discussions than mediators. They can make recommendations, provide education, and make limited decisions with approval by the court.
Parenting coordinators cannot make substantive decisions, such as decisions about time-sharing, nor can they make recommendations to the court about substantive matters unless the court finds good cause that would further the child’s best interests.
Parenting coordinators may make written recommendations to the court regarding non-confidential matters, but they will not be called to testify unless the court determines there is good cause.
The Florida Rules of Procedure allow parenting coordinators to access your confidential health information or other privileged records with your express written consent. The court can also authorize parenting coordinators to access privileged information regarding the child.
If you are a victim of domestic violence, the court cannot order parenting coordination except with your expressed written consent.
How Does the Court Determine Joint Custody Arrangements?
The court may consider the parents’ wishes when determining parental responsibility or parenting time, but the child’s welfare is the first guiding principle. Some areas of parental responsibility may be assigned exclusively to one of you in areas in which you are unlikely to agree in the future and according to the best interests of the child.
When determining joint custody arrangements, the court will consider the following:
- Whether you and the other parent are morally, physically, and psychologically fit to care for the child
- The needs of the child
- Each parent’s willingness to put the child’s best interests first
- Each parent’s active involvement in the child’s school and extracurricular activities
- The reasonable preferences of the child
- The location of each parent relative to the child’s school and other activities
How Does Domestic Violence Impact Joint Custody?
The court will carefully analyze any conviction or evidence of domestic violence, which could prevent the parent from receiving unsupervised parenting time. The law gives the court a rebuttable presumption of detriment to the child if a parent has been convicted of a first-degree misdemeanor for domestic violence or a sexual offense against a child.
In these cases, the parent has a right to present evidence that no detriment to the child exists. If the parent fails to prove it, the court may award full custody to you.
Benefits of Obtaining Joint Custody in Florida
The Florida court system acknowledges that children benefit from a close and continuing relationship with both parents following a divorce. Scientific studies in the mental health field support this.
According to the National Review, children form strong bonds with both parents as early as the eighth week of life. Children with both parents in their lives are less likely to do the following:
- Perform poorly in school
- Go to jail
- Consume drugs and alcohol
- Become pregnant or cause a pregnancy during the teen years
- Experience depression
- Be unemployed during adulthood
Although not a primary consideration of the court, the studies cited reveal that cooperative parenting also benefits parents. Single mothers parenting alone are more likely than any other segment of society to live in poverty, with 31 percent of single mothers living below the poverty line compared to 5.8 percent of married women.
Parents whose children are not living with them have the highest levels of adult depression. In fact, non-custodial fathers are eight times more likely than other fathers to commit suicide.
Unfortunately, Florida’s joint custody laws do not go far enough in helping children, and parents realize the benefits of cooperative parenting. According to Stat News, children who spend at least 35 percent of their time with each parent, rather than living with one and visiting the other, have better relationships with both parents and are generally better adjusted and more successful.
Several states have adopted a rebuttable presumption that equal parenting time is most effective in serving children’s best interests, but Florida has yet to make this change. As a result, the non-custodial parent often only receives occasional visitation with their children, such as every other weekend. This disproportionately impacts fathers.
Joint Custody FAQ
Below are answers to the questions we most frequently receive about joint custody.
Can a Parent with Joint Custody Relocate?
You can move to a new address within the same geographical area. If you are relocating more than 50 miles away for longer than 60 days, you must file a petition for a modification and wait to move until you receive approval from the court. The court may allow the move if it is in good faith and after evaluating such factors as the following:
- Your reason for relocating
- Whether the move will enhance you or your child’s quality of life
- The feasibility of maintaining a continuing relationship between your child and the other parent
- The reasons the other parent objects
- Whether the objecting parent has fulfilled their financial obligations such as child support and alimony
In Joint Custody, Who Claims the Child on Taxes?
The parent who claims the child as a dependent should be listed in the parenting plan agreement. If the parents cannot agree, the court will make this determination. According to the Internal Revenue Service, a non-custodial parent may claim a child as a dependent and claim the child tax credit.
However, the non-custodial parent cannot claim the child as a qualifying child for the earned income credit. The IRS defines the custodial parent as the parent with whom the child spends the most time.
If you are a non-custodial parent claiming a dependent child, the other parent must complete IRS Form 8332, which authorizes you to claim the child. The court will order the parent to complete this form as applicable.
If you cannot agree on who will claim the child, the court may order you to claim the child during alternate years or decide in one parent’s favor.
Who Pays Child Support in Joint Custody?
The parent with less parenting time usually pays child support, but this is not guaranteed. The court assigns each parent a support obligation based on income, childcare costs, health care coverage, and other specific circumstances, including the number of overnight visits.
The parent with the higher net obligation pays child support to the other parent. As a result, one parent will likely be ordered to pay child support even if you receive equal parenting time. Whether you are paying or receiving child support, our child support lawyers can ensure you are treated fairly by the court.
Who Is the Custodial Parent in Joint Custody?
Florida law does not officially designate one parent as the custodial parent in joint custody cases. However, the parent with the larger amount of parenting time is generally referred to as the custodial parent.
Is it Possible to Get Joint Custody Without Going to Court?
Even if both parents come to an agreement outside of court, the final custody arrangement generally must be approved by the court, with the exception of agreements forged through the Colaborative Law provess.
If you agree on everything, a Collaborative Law attorney, such as Mark O’Mara, can help you reach a confidential agreement outside of court. Once signed, this agreement is legal and binding without the need to attend a hearing.
How Can a Father Get Joint Custody?
It is a father’s right in Florida to receive equal consideration for parental responsibility and parenting time. Florida law prohibits the court from favoring either parent on the basis of gender.
If you were unmarried during the child’s birth, and your name is not on the birth certificate, you must establish paternity before pursuing custody. This can be done through a written acknowledgment signed by you and the mother or by submitting to genetic testing. After establishing paternity, you can file a custody petition.
Contact the O’Mara Law Group Today
Florida joint custody battles are often emotionally charged. You need an attorney on your side who will advocate for you and represent your wishes in a favorable light, especially if your ex has hired an attorney.
Our experienced custody attorneys at the O’Mara Law Group understand what is at stake, and we know what it takes to ensure you receive the best possible outcome. Contact us today for a confidential consultation.
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