*THIS ARTICLE WAS UPDATED PURSUANT TO THE REVISED FLORIDA STATUTE, 61.13, WHICH BECAME EFFECTIVE AS OF JULY 1, 2023
Does Florida have a presumption in favor of 50/50 time-sharing? The new, short answer is YES.
On July 1, 2023, the Florida law regarding time-sharing (formerly known as custody) was revised significantly. After previous unsuccessful legislative attempts to do so, the law regarding parents’ contact with their children now provides that parents should have equal time-sharing with their children. Specifically, Florida Statutes section 61.13 states the following: “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.”
What does all that actually mean for parents? Simply put, the belief is that the children should be spending an equal amount of time with both parents despite the fact that their parents are going through a divorce or otherwise separating. In order to overcome this presumption of equal time-sharing, one parent must prove by a “preponderance of the evidence” that equal time-sharing is not in the best interests of the child or children at issue. Thus, the parent objecting would have to show it is “more likely true than not” that an equal time-sharing schedule would not be in their child’s best interests.
The best interests of the children continues to be the primary consideration when it comes to time-sharing. If parents cannot agree to a time-sharing schedule, the court still must consider the 20 factors listed in the statute when determining time-sharing. Further, the court has the final say on issues having to do with children. Parents should be aware that because of this, even if the parents agree to a time-sharing schedule, there is a possibility a court may review their agreement, decide that it is not in the best interest of the children, and establish a different time-sharing schedule.
Another point of note is that the presumption outlined in the new law is a presumption of equal time-sharing, not of 50/50 time-sharing. This may not be a large distinction to some; however, it is worth noting because sometimes, parents can become blindly focused on the numbers, 50/50. We have seen in many instances, parents locked in lengthy, contentious battles to ensure that the child’s time spent with each parent is exactly 50%. This tunnel vision on the numbers, 50/50, often results in parents losing sight of some realities–that their specific circumstances (for example, employment, school, distance from each parent’s homes, etc.) are not conducive to an exact 50/50 time-sharing schedule and, more importantly, that their children will remember the quality of time they spent with their parents, not whether they could look on their calendars and assign them each 182.5 days per year during their childhood.
The Artemis Approach in any matter involving time-sharing is to consider each parent’s case individually and be guided by their family’s particular circumstances before, during, and after their family law matter in reaching a resolution that works best for them. If you have further questions regarding time-sharing, the revisions to Florida’s time-sharing law, or any other family law matter, please click here to schedule a consultation.
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One of the more common, and resilient, misconceptions in Florida family law is the myth that there is a presumption in favor of 50/50 timesharing (formerly known as custody). While it is true that there have been some legislative attempts to create this presumption, no bill has become law that would create this presumption. There is a statement in Florida Statutes section 61.13 that it is the public policy of Florida that each child be permitted to have “frequent and continuing contact with both parents.” However, this is far from the creation of a presumption of a 50/50 time-sharing arrangement.
Instead, section 61.13 provides the judge a vast amount of discretion in determining the appropriate timesharing (custody) arrangement for each case. Section 61.13 lists 20 factors that the judge is compelled to consider when making a time-sharing (custody) determination (see Frequently Asked Question: When can a child decide who to live with in Florida? for a more detailed discussion of those factors). Additionally, section 61.13 specifically declares that “there is no presumption for or against the father or mother of the child or for or against any specific time-sharing schedule.”
Part of what has caused confusion is the change from the prior term “custody” into two distinct, but related concepts of “time-sharing” and “parental responsibility.” As discussed above, the law does not create a presumption of equal time-sharing. The law does, however, create a presumption in favor of shared parental responsibility. Shared parental responsibility is the idea that both parents are equally involved in the decision-making as it relates to their children and that all decisions are made on a joint basis, or not at all. Shared parental responsibility does not mean that the timesharing arrangement is 50/50. In fact, it is quite common for both parents to have shared parental responsibility while exercising a timesharing plan that is far from 50/50.
While it is true that there is no statutory presumption in favor of a 50/50 time-sharing plan, some judges, in the exercise of their broad discretion, will favor timesharing arrangements that are as close as possible to 50/50. On the other hand, some judges view 50/50 time-sharing plans more skeptically than other arrangements. Therefore, it is important to retain a Florida family law attorney, like those at Artemis Family Law Group, who are aware of each judge’s preferences and skepticism in a dissolution of marriage involving children or other family law cases concerning time-sharing disputes.