Child Custody and Visitation v. Parenting Plan and Timesharing

In 2008, major changes were made to Chapter 61 of the Florida Statutes. The terms custody, visitation, custodial parent, noncustodial parent, primary residential parent, and secondary resident parent were eliminated from the statute and parental responsibility is now governed by parenting plans and timesharing schedules.

“Parenting Plan” has been defined in §61.046(13) of the Florida Statutes as “a document created to govern the relationship between the parties relating to the decisions that must be made regarding the minor child and shall contain a timesharing schedule for the parents and child. The issues concerning the minor child may include, but are not limited to, the child’s education, health care, and physical, social and emotional well-being. In creating the plan, all circumstances between the parties, including the parties’ historic relationship, domestic violence, and other factors must be taken into consideration. The parenting plan shall be developed and agreed to by the parents and approved by a court or, if the parents cannot agree, established by the court.

“Timesharing Schedule” has been defined in §61.046(22) of the Florida Statutes as “a timetable that must be included in the parenting plan that specifies the time, including overnights and holidays, that a minor child will spend with each parent. If developed and agreed to by the parents of the minor child, it must be approved by the court. If the parents cannot agree, the schedule shall be established by the court.”

The Best Interest of the Child

The “best interest of the child” continues to be the standard in establishing or approving a parenting plan and timesharing schedule. Florida Statute §61.13(3) establishes several factors for the court to consider when determining what is in the child’s best interest. These factors include, but are not limited to:

  • The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the timesharing schedule, and to be reasonable when changes are required.
  • The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.
  • The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parents.
  • The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
  • The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of either parent with a child.
  • The moral fitness of the parents.
  • The mental and physical health of the parents.
  • The home, school, and community record of the child.
  • The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
  • The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to, the child’s friends, teachers, medical care providers, daily activities, and favorite things.
  • The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, and daily schedules for homework, meals, and bedtime.
  • The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child.
  • Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect, regardless of whether a prior or pending action relating to those issues has been brought.
  • Evidence that either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect.
  • The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties.
  • The demonstrated capacity and disposition of each parent to participate and be involved in the child’s school and extracurricular activities.
  • The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse.
  • The capacity and disposition of each parent to protect the child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child.
  • The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs.
  • Any other factor that is relevant to the determination of a specific parenting plan, including the timesharing schedule.

Fourth Judicial Circuit Timesharing Guidelines

The Fourth Judicial Circuit (Duval, Nassau, and Clay counties) formalize timesharing guidelines to standardize timesharing (formerly called visitation). Parties may agree to different terms, and the Court may order a different timesharing schedule, but the guidelines are the standard.

Below are the guidelines as currently written.

Neither parent shall conceal the whereabouts of any child(ren) of the parents, and each parent shall keep the other advised at all times of the residential address, email address, and phone numbers where the child(ren) will be staying while in the physical custody of either parent. Each parent shall notify the other immediately (no later than 3 hours) of any emergency pertaining to any child(ren) of the parents.

Reasonable timesharing with any child(ren) of the parents shall take place at such time and place as the parents may agree. If the parents cannot reach an agreement as to details of timesharing, the court may consider these guidelines in crafting a timesharing schedule after taking into consideration the factors enumerated under applicable Florida law.

Promoting Mutual Respect: These guidelines are predicated upon the premise that the parents will each afford the other the utmost of mutual respect. Each parent shall seek to promote and encourage the love and esteem of the child for the other parent. Neither parent shall intentionally do anything to estrange or alienate the child from the other parent. Neither parent shall make any derogatory remarks about the other parent or the other parent’s family in the presence of the child, nor shall either parent allow others to do so. Each parent shall be pleasant and polite in communicating with the other parent.

The child(ren) have a right to spend substantial, quality time with both parents and it is the intent of  these Guidelines that the child(ren) spend substantial time with both parents. Each of the parents shall exercise the utmost good faith and shall consent to all reasonable timesharing requests by the other parent. The majority timeshare parent is expected to provide reasonable access to the child(ren) at unscheduled times, if requested, and if to do so does not unreasonably disrupt prior planned activities of the child(ren) or the parent. Therefore, the non-majority timeshare parent is entitled to and shall have the following timesharing with the child(ren):

WEEKDAYS: One overnight per week from immediately after school/work until the following morning, at which time the child(ren) shall be timely returned to school/daycare or to the other parent by 9:00 a.m., if school is not in session. If the parents cannot agree, the overnight shall be Thursday.

WEEKENDS:

A. Every other weekend from Friday after school/work until the following Monday morning at which time the child(ren) shall be timely returned to school/daycare.

B. Should the non-majority timeshare parent’s regular weekend fall on a three-day weekend which is observed by the child(ren)’s school, and the weekend is a holiday or special occasion not otherwise expressly provided for below, the non-majority timeshare parent shall be entitled to a three-day weekend. In such event, the weekend shall be defined as after school/work the day school recesses for the weekend (Thursday or Friday) through return to school/daycare at the end of the weekend (Monday or Tuesday).

C. As to paragraph 2(A), the majority timeshare parent shall have the alternate weekends.

HOLIDAYS:

A. Spring Break: School spring break in even-numbered years from immediately after school/work the day school recesses for the break until the day school resumes when the child(ren) shall be timely returned to school/daycare.

B. Easter: Easter weekend in even-numbered years, from after school/work the day school recesses for the weekend until the return to school the day it resumes.

C. Mother’s Day Weekend/Father’s Day Weekend: The child(ren) shall be with the mother on Mother’s Day weekend and with the father on Father’s Day weekend, and with the other parent the following weekend.

D. Independence Day: Independence Day in odd-numbered years from 9:00 a.m. July 4th through 9:00 a.m. July 5th (except it shall be a three-day weekend if July 4th falls on a Friday or Monday).

E. Thanksgiving Weekend: Thanksgiving weekend in even-numbered years from immediately after school/work the day school recesses for the holiday until the return to school the day it resumes.

F. Christmas/Winter Break:

   1. Christmas Holiday: For a parent that celebrates the Christmas holiday, the intent is for the parents to equally divide the number of days the child(ren) have off from school for the holiday, including weather days. The non-majority timeshare parent shall be entitled to the first part of the break in odd-numbered years and the majority parent shall have the first part of the break in even-numbered years. The parent with the first half of the holiday shall have the child(ren) from after school/work the day school recesses for the break until Christmas Day at 2:00 p.m. The parent with the second half of the holiday shall have the child(ren) from 2:00 p.m. on Christmas Day, for a total number of days equal to one-half of the Winter Break, returning the child(ren) at 6:00 p.m. on the last day of his/her part of the break, to the other parent who shall have the remainder of the holiday period until school resumes. The non-majority timeshare parent shall have the second half of the break in even-numbered years and the majority parent shall have the second half of the break in odd-numbered years.

   2. Winter Break: For all other parents, the intent is for the parents to equally divide the number of days the child(ren) have off from school for the Winter Break holiday, including weather days. The non-majority timeshare parent shall be entitled to the first part of the break in odd-numbered years and the majority parent shall have the first part of the break in even-numbered years. The parent with the first half of the holiday shall have the child(ren) from after school/work for a total number of days equal to one-half of the Winter Break, returning the children at 6:00 p.m. on the last day of his/her part of the break, to the other parent who shall have the remainder of the holiday period until school resumes

G. Birthdays: Birthdays of the child(ren) in even-numbered years, from after school/work or 9:00 a.m. (if school is not in session) on the birthday until return to school the following morning or 9:00 a.m. (if school is not in session).

H. As to paragraph 3(A) through (E) and (G), the majority timeshare parent shall be entitled to the same time with the child(ren), but in alternate years.

I. Even though several of the above timesharing provisions are related to “school,” the non-majority parent shall have the same visitation with children who are not in school.

J. Holidays and special occasions, as provided in paragraphs 3(A) through 3(G), shall have priority over regular weekday and weekend timesharing. In the event the holiday timesharing schedule has the effect of creating three (3) consecutive entire weekends (or in a 50/50 timesharing scenario, three consecutive entire weeks) with one parent, then the third such weekend (or week in a 50/50 timesharing scenario), shall revert to the other parent, after which the regular schedule shall resume. The result will be that each parent will have two weekends in a row (or in a 50/50 timesharing scenario, two weeks in a row) and then return to their alternating schedule.

SUMMER VACATION:

A. The parents shall equally divide the summer break by alternating their timeshare with the child(ren) weekly. Exchanges shall take place on Friday after school/work beginning on the first Friday following the end of school (or if school recesses on a Friday, it shall begin that day) with the non-majority parent having the first full week and the majority timeshare parent having the second full week and alternating weekly thereafter until the Friday before the start of school. (Parents utilizing a 50/50 timesharing schedule during the school year should maintain that same rotation during the summer.)

B. Notwithstanding the foregoing, during the summer each parent shall be entitled to reasonable extended out-of-town vacation time of up to two consecutive weeks, uninterrupted by sharing the child(ren) with the other parent. The parents shall each notify the other in writing when they elect to take their vacation times with the child(ren) no later than April 1st each year. In the event of a conflict, the Father’s vacation time shall have priority in even-numbered years and the Mother’s vacation time shall have priority in odd-numbered years.

C. The parent who is not exercising timesharing during a given week shall be entitled to have the child(ren) for dinner from after camp/daycare/work until 8:00 p.m. If the parents cannot agree on a day, it shall be Thursday evening.

D. Each parent shall be responsible for enrolling the child(ren) in and paying for summer camps or daycare during his/her summer timesharing.

CONFLICTS: Both parents shall endeavor to be punctual in transferring the child(ren). If circumstances prevent either from being punctual, the parents shall communicate and cooperate appropriately.

CANCELLATIONS: Each parent shall give the other parent at least 24 hours advance notice (or if an emergency occurs, as quickly as possible), if he/she will be unable to exercise weeknight, weekend, Father’s Day, Mother’s Day, or birthday visitation. As to holidays, there shall be one-week advance notice; as to Christmas and summer, one month advance cancellation notice. Notice as to Christmas and summer vacation shall be in writing.

PARENT CHILD(REN) CONTACT: The parents shall permit the child to have telephone, email, and/or other electronic communication, including audio/visual contact through features such as Skype or Facetime with the other parent, at any reasonable time. If the parents cannot agree on the days and times for such communication, then the child(ren) shall be permitted at a minimum to speak with the other parent on Mondays, Wednesdays, and Fridays at 7:30 p.m. EST. Neither parent shall monitor, intercept, interrupt or listen to communications between the child and the other parent absent a Court order authorizing them to do so. If a parent takes away phone privileges from a child as a form of punishment, the child shall still be permitted to have telephone or other such contact with the other parent as set forth herein.

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