Understanding Child Custody
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There are two components to child custody: decision making and companionship. As a general rule Florida Courts will determine custody based on what is in the "best interest of the children."
The "best interest of the children"
The United States Supreme Court has established a general rule that it is in the best interest of the minor children to enjoy the
enjoy the custody and companionship
of both of their parents. Additionally, it is a well
established rule that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children. Accordingly, so long as a parent adequately cares for his or her children ( i.e. , is fit), the state (family services) and the courts have no power to remove or restrict a parent's right to the custody (both physical and decision making) of his/her child. The Florida legislature, following this principal, has stated that there is a presumption that shared custody of the minor children is in the best interest of the children.
When applying these rules, Florida Judges, who have broad discretion in family court matters, will try to find an arrangement that will place both parents in equitable setting so that the children can enjoy both parents. From a financial point of view, courts will look to have both parents in an equitable setting. This may have an influence on who the primary custodian may be. On an emotional level, courts will ensure that both parents refrain from alienation and that they work together to make decisions for the children.
Resort to mediation PRIOR to hiring a lawyer
Having explained the basic concept regarding child custody, I strongly advise that prior to engaging the services of a lawyer, both parents seek the assistance of a licensed mediator in order work out your differences. If both parents agree to mediation, your statements will be confidential, just as with a lawyer. You can even ask to speak to the mediator in private. You will be getting feedback from someone neutral who will have listened to both sides and who will give you an objective opinion. Most importantly, you will be saving potentially thousands of dollars which could be better used to pay off any debt of the parties, education for one of the parents so that they can have a carrier, a trust fund for the children, therapy for the children to assist them in adjusting to the new change in their lives, etc.
What to do when a parent does not cooperate and resorts to alienation?
Although, in theory, it would be best for the children to enjoy the companionship of both parents, in reality getting parents to cooperate after a divorce is sometimes challenging. After all if the parties were getting along initially, they would not be filing for dissolution (divorce) in the for place. Even though family court judges always tend to have both parents involved in the children' lives, they do resort to granting one parent sole custody if the other parent sabotages the shared custody arrangement to the point to affect the welfare of the children.
Before seeking sole custody of a child, the first thing one should know is that each family court judge has approximately 150 new cases per month (almost 2,000 new cases a year). This is in addition to older cases which were never resolved. As a result, the family court process will have to be a long one in order to allow the family court judge to familiarize himself/herself with the parties. It does help that you hire a lawyer who routinely practices before these judges as they will be more familiar to the specific judge. If you cannot afford a lawyer, you can represent yourself and obtain forms from the self-help desk of the family division. You can also have lawyers represent you only for specific instances.
If you need to represent yourself, the first thing to do is read about the judge presiding on your cases. You can simple google the name of the judge and obtain a short biography about the Judge. Next, you will need to file a motion that the other parent is alienating the children and preventing you from sharing custody of the children. The judge will then refer the matter out to psychologists for evaluations in order to determine if the claim is valid or not. If you are telling the truth and the other parent is making shared custody impossible, the therapist will easily pick up on the same and they will make recommendations. If you are not telling the truth, you may be sanctioned by the family court judge. It is then up to the family court judge to decide whether he/she will sign an order requiring a party to comply with the therapy mandates. This is where it is good to know some things about of the family court judge. Usually, a judge who has sat on the criminal bench and who has dealt with teenager delinquency tends to take alienation more seriously than a judge who was just transferred from the civil bench. If the party does not follow up with the court's order, you can ask that the party be held in contempt. After a few contempt hearings, the court will get a general picture of what is going on and may decide to grant you sole custody at that point in time. You must understand that this process will likely take at least a year and you must follow through to the end.
