Florida Statute 61.13(2)(c)(1) provides that it is the public policy of the State of Florida that children under the age of 18 have “frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved …” Section 61. 13(2)(c)(1) further provides that Florida has abolished the “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.” Section 61.13 is important to parents in a divorce in several respects. First, under the statute, Florida has done away with the “tender years doctrine.” Under the tender years doctrine, courts used to recognize a preference for awarding custody to the mother when the child is young. See Kuutti v. Kuutti, 645 So. 2d 80 (Fla. 4th DCA 1994). Under current law, granting custody based upon the tender years doctrine is grounds for reversal. Cherradi v. Lavoie, 662 So.2d 751 (Fla. 4th DCA 1995).
In 2008, the Florida Legislature abolished the concept of custody and replaced it with the concept of parenting plans and time-sharing. Schwieterman v. Schwieterman, 114 So. 3d 984, 986 (Fla. 4th DCA 2012), citing Bainbridge v. Pratt, 68 So. 3d 310 (Fla. 1st DCA 2011). Equally important, through the 2008 amendments, the Legislature also eliminated any presumption against rotating custody or time-sharing. Schwieterman at 986; see also, Mudafort v. Lee, 62 So. 3d 1196, 1197 (Fla. 4th DCA 2011)(holding that under 61.13 as amended, “there is no longer a presumption against equal timesharing.”)
Given that Florida has abolished presumptions for or against particular time-sharing schedules, courts now must base their decisions regarding time-sharing arrangements on the “best interest of the child” factors. Schwieterman at 987, citing Fla. Stat. § 61.13(3) (2010). Section 61.13 requires that a determination of the best interests of a child include consideration of several factors such as (1) the capacity of each parent to consider and act on the needs of the child; (2) the geographic viability of the parenting plan with consideration given to the amount of travel time required to implement the plan; (3) the moral fitness of the parents; (4) the home, school and community record of the child; and (5) the ability of a parent to be informed about the child’s circumstances, such as the child’s friends, teachers and medical providers.
In Schwieterman, the trial court made several references to the need for equal time-sharing of the child. On appeal, the wife argued that the trial court committed reversible error by presuming that the child’s time had to be split equally between the parents. The Fifth District disagreed, noting that the trial court found in its written order that the time-sharing plan was in the best interest of the minor child. Significantly, the trial court found that an equal split in time-sharing would promote the parent-child relationship. Under Schwieterman, a court can still consider the benefit of an equal time-sharing arrangement so long as doing so is in the best interest of the child. Presumptions in favor of equal time-sharing arrangements, however, are no longer permissible.
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