Teris Deitsch

*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.

One of the more common misconceptions that we encounter in family law is the myth that once minor children reach a certain age in Florida, they can simply decide for themselves who to live with and the courts will defer to that preference. The reality is that it is much more complicated than that, as we discuss in more detail below. Quite simply though, children do not get to make their own time-sharing (formerly known as custody) determinations.

When the parents cannot decide on a time-sharing (custody) arrangement with their children, the Court must step in and decide for them. After hearing evidence from both parents, the Court will create a parenting plan which is based on what is in the children’s best interests. The parenting plan is a comprehensive document, which includes a time-sharing schedule.

The law instructs the courts to consider 20 factors in crafting this parenting plan (see section 61.13(3), Florida Statutes). These factors include, but are not limited to:

• each parent’s willingness to honor the time-sharing schedule and to be reasonable when change is required;
• how much parental responsibility would be delegated to third parties;
• each parent’s demonstrated ability to act on the best interests of the child instead of their own interests;
• whether it is in the child’s best interest to maintain continuity with the current living arrangement;
• how much time would be spent traveling in order to effectuate the parenting plan;
• the moral fitness of the parents;
• each parent’s physical and mental health;
• each parent’s demonstrated ability to keep the other parent informed of issues related to the child;
• each parent’s demonstrated ability to stick to a routine for the minor child;
• evidence of child abuse and/or domestic violence;
• evidence of substance abuse.
• “Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.”

In addition to these, and other factors, the courts are also instructed to consider “The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.” So, what does this mean and when will the courts actually consider a child’s preference in crafting a parenting plan?

First, the courts are provided an incredible amount of discretion when determining whether or not to consider the preferences of a child in a time-sharing (custody) dispute. The statute does not simply instruct the courts to consider the child’s preference, but requires the preference to be “reasonable” and also only be considered after the court determines that the child has the maturity to express a preference.

Second, there is no specified age in Florida at which the courts will consider a child’s preference. The court will instead decide this based upon the specific circumstances of each case. The older a child is, the more likely the court will consider his or her opinion, but there is still no magic age at which the courts must consider this.

Third, the courts often have strong and justified concerns with eliciting a child’s time-sharing (custody) preferences. The reality is that children’s preferences can be influenced and even manipulated by a parent or be based on things like which parent is the disciplinarian. When a judge does agree to hear a child testify on this matter, it often occurs in chambers as opposed to open court. However, in practice, most judges do not want to hear from the child directly as they do not want to put the child in the position of “choosing” one parent over the other. A better option is to obtain a child’s preferences via the testimony of a guardian ad litem. Additionally, a child therapist is sometimes used to determine a child’s preference.

In sum, most of the time, the courts will not consider the child’s preference in making time-sharing (custody) determinations. If they do, it will be based on the individual circumstances of the case and not on any specific age at which a child will be permitted to make his or her own time-sharing decision.