During a divorce, one of the most difficult decisions to make is determining with which parent a child will live. The court may listen to a child’s preference, but that is only one of several factors it will take into consideration. There is a fine balance between what is in the best interest of the child and what the child wants.
Child’s Preferences and the Court
Regardless of which parent the child wishes to live with, in the State of Florida, the ultimate decision rests with the court if the parents don’t agree on how to divide visitation and custody time. If the parents cannot agree to a schedule, the court will notice the case for trial. Both parents are required to testify; then, the court (not the parents or the child) will create a parenting plan with a time-sharing schedule and parental responsibility based on what is in the best interest of the child. The time-sharing schedule will specify the amount of time the child spends with each of the parents. An equal division of time (50/50) is becoming the standard in the State of Florida, although, depending on the parents’ circumstances, 50/50 may not be possible. In such a case, the court is likely to award one parent either sole custody or the majority of physical time with the child.
Parent with Legal Custody
The parent with legal custody is referred to as the “custodial parent.” He or she will make critical decisions on the child’s behalf regarding health, education, and general welfare. Join custody means both parents have the right and responsibility in matters involving the child. If they cannot agree, the court will review the plan to consider the child’s best interest and needs.
Factors that Help the Court Decide Custody
The judge will consider more than a child’s preference when determining custody arrangements. The following will be relevant factors:
- The parents’ willingness and ability to encourage a relationship with the other parent.
- Each parent’s capability to handle the child’s needs.
- Each parent’s fitness relative to physical, mental, and moral health.
- The geographic practicality as it relates to the child’s school, friends, etc.
- Evidence of each parent’s ability to raise the child in a safe and secure environment.
- The child’s own specific needs.
The State of Florida does consider parental moral fitness. This includes a history of addiction, abuse, casual relationships, or other questionable parental behavior that may affect the child.
Florida Court and the Child
When considering a child’s preference as to which parent he or she would prefer to live with, the court considers the overall intelligence and maturity of the child and whether the child understands what is actually being decided. It won’t usually consider the child’s age, but any child under the age of ten may be considered too young to make such an important decision.
One important factor for the judge to consider is the reason for the child’s preference. Perhaps one parent has been coaching the child’s statements. Or the child wants to stay with one parent because that parent provides more sweets and lets him or her stay out later on a school night. In addition, the child could be feeling rebellious toward one of the parents due to a recent punishment. That is why a Florida judge will base a decision on multiple factors. He or she may also speak to the child privately, outside of the courtroom, and without witnesses.
Children and Court Testimony
No child can be forced to testify in court in the State of Florida. The court will permit such testimony only in dire cases. However, a mental health counselor can interview the child and offer expert testimony on its behalf. From my personal experience, most judges prefer that a child does not testify.
Another option is for the court to appoint someone to represent the child’s interests (called a guardian ad litem), who can then testify.
Losing a spouse in a divorce is painful enough. No one wants to lose a child, as well. That, however, may be the case based on the court’s evaluation of all circumstances relating to the family dynamics. To protect your relationship with your child, it is best to discuss the situation with an experienced State of Florida family attorney.
The legal process can get difficult, which is why we always recommend that you seek the assistance of counsel; or at least have a consultation. Schedule a consultation with one of our attorneys today to review the issues of your case, the legal options you may have, and certain rights that pertain to your unique situation.
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