Published in the Docket

by Carmen R. Gillett

- with special thanks to Angel Bello-Bellini, Esq.
Legal Aid Society of the Orange County Bar Association

In a simple word, no. Despite the overwhelming number of proponents that believe the recent changes create a “presumptive 50/50 custody” approach, the revised version of the parenting statute does not, in fact, create such a presumption. Such an argument was based by its proponents on the fact that the definitions of “custodial parent”, “non-custodial parent”, “primary residential parent”, “person entitled to be the primary residential parent of a child”, and “principal residence of a child” were all eliminated from the prior parenting statute, and definitions were created for “parenting plan,” “parenting plan recommendation,” and “time-sharing schedule.” Further, they based their proposition on the fact that the legislature, in 2008, repealed 61.121, Fla. Stat., which had previously stated that “the court may order rotating custody if the court finds that rotating custody will be in the best interest of the child.” Such supporters also relied upon the amended language in 61.13(2) ( c ) (2008) which stated that “there is no presumption for or against the father or mother of the child when creating or modifying the parenting plan of the child.” In other words, the legislature’s re-designation of Chapter 61, with its amendments and repealing of 61.121, created a statutory prohibition against a presumption of either the mother or father. The supporters of the 50/50 presumption, however, seized upon these changes to buttress their position that the legislature intended these changes to create a mandatory or presumptive 50/50 “custody” or time sharing approach ¹.

Unfortunately for those supporters, the Family Law Section of the Florida Bar became painstakingly aware of the misinterpretation and proposed a glitch bill to resolve the issue as to whether or not the revised changes created a presumption in favor of 50/50 time sharing. The relevant provisions of the glitch bill became effective on October 1, 2009, and it now clearly states in 61.13 (2) ( c ) 1 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.” Further, it now clearly states in 61.13 (3) that “Determination of the best interest of the child shall be made by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family,.......” ².

Even if were not clear from the “fixes” made by the legislators to any prior misconceptions, Chapter 61 must be read “in pari materia”, in other words, it should be construed as a whole in order to ascertain the general purpose; and the meaning of each part, each subsection, sentence, and clause must be read in light of the others to form a congruous whole. Such a reading does not support any 50/50 presumption.

Simply put, the factors enumerated in 61.13(3) mandate that the court consider the detailed history of every family and its unique facts. Further, had such a substantive change been intended by the legislators, it would have been noted during the drafting of the legislation. Such a change can be found no where in the study of the legislative history of the changes.

To be sure, a substantive analysis of the changes made by the legislature reveal that the changed legislation was brought about in an attempt to remove outdated and unnecessarily negative terminology relating to divorcing parents and their children, thereby reducing animosity during the proceedings, and improving the family circumstances for the children. These changes include but are not limited to the removal of the terminology associated with the prior statutes which governed that the court make determinations concerning the children relating to “custody” for the primary residential parent and “visitation” for the secondary, or non custodial parent.

Clearly, the custody rules were not always as flexible as they are in present society. For the greater part of the Western history, tradition and common law automatically gave fathers the custody of their children and that changed little through the Middle Ages. Later, English common law provided fathers with absolute powers, as well as the legal obligation to protect, support, and educate their children. Fathers continued to have the right to custody, regardless of circumstances, and mothers had very restricted access to their children after a dissolution until the mid-nineteenth century.³

A shift occurred with the enactment of the British Act of 1839, which directed the courts to award custody of children under the age of seven to mothers, and to award visiting rights to mothers for children seven years and older. This created the “tender years” doctrine. While originally it was intended to determine custody only until the children were old enough to be returned to the father’s custody, it became the first significant challenge to the prior paternal presumption.⁴

The American legal system followed those trends during the seventeenth and eighteenth centuries. Indeed, the concept of “father custody,” which was somewhat automatic, actually stabilized the family system at that time. Major historical trends, however, i.e. the industrial revolution and the change in the division of family responsibilities in the late 1800s', 1900's and into the early twentieth century, weakened the prior patterns of paternal preference. The maternal preference gradually replaced the paternal preference and “mother custody” became the rule by the year 1920.⁵

The maternal presumption continued for many decades until it too, like the prior paternal presumption, became eroded by historical trends, such as the feminist movement and the entry of large numbers of women into the work force. The Uniform Marriage and Divorce Act, approved in 1970, included the blueprint for what is commonly known as a “no fault divorce.” Its purpose was, in pertinent part, to eliminate the rancor of the “accusatory” divorce process. The Act also provided the first real framework for a gender-neutral, straight best interest standard, and conceived of a psychological (vs. biological) parent.

The concepts of “no fault divorce” and of joint custody clearly emerged nationwide in the late seventies, and in fact, several states enacted joint custody statutes. Although Florida has not enacted a statute in which joint custody is specifically designated as an option or a preference, the new revisions to Chapter 61 undeniably make this a possibility for the court to consider. However, it is clear that the new statute and its “fixes” require that the court consider the detailed history of every family in establishing or modifying a parenting plan, and to consider all possible options which are in the best interest of each particular minor child, including but not limited to each child’s age and psychological and developmental needs. This analysis may, indeed, ultimately result in a 50/50 time sharing plan, however such a plan is not to be considered a starting point. Clearly, any parenting plan or time sharing schedule should be supported by the court’s thorough application of all of the statutory factors resulting in a decision which should be determined to be in the best interest of each minor child in consideration of each family’s unique set of factual circumstances.

¹ The 2008 and 2009 bills substantially amend, create, or repeal the following Florida Statutes: 61.046; 61.13; 61.13001; 61.183; 61.20; 61.21; 61.30; and 741.30.

² As a practice tip, the writer wishes to point out that the glitch bill also now provides for parenting coordination as a alternate dispute resolution process. Therefore, the statute provides for confidentiality of the parenting coordination process.  This is brought to the attention of the reader since under traditional circumstances a court order for such therapeutic intervention, without more, would eliminate an expectation of privacy.

³ Roth, A. The tender years presumption in child custody disputes. Journal of Family Law 15: 423-461., 1976.

⁴ Kelly, J.B. The Determination of Custody. The Future of Children, children and Divorce. Vol. 4, No.1, Spring 1994.

⁵ Interestingly, by the time “mother custody” had become the judicial preference, the divorce rate had increased by a factor of fifteen from the rate of divorce in the late 1800's.