How to Get Sole Custody or Full Custody in Florida
Traditionally, sole custody refers to one parent’s exclusive legal and physical rights regarding a child. A parent with sole custody would have the authority to make decisions regarding the child without the other parent’s consent.
The concept of sole custody can be broken down into two components – sole legal custody and sole physical custody.
Generally speaking, sole legal custody refers to the exclusive right to make child-related decisions such as what school the child will attend or whether or not the child should receive a particular form of medical treatment.
On the other hand, sole physical custody refers to the child residing with one parent only. The other parent may still have reasonable contact with the child but this is sometimes at the discretion of the parent who has sole physical custody.
Many people think that having sole custody of a child in Florida means that the other parent loses all of his or her parental rights, including the right to spend time with the child. But this is not true.
For one thing, Florida courts will not allow one parent to be completely cut out of the child’s life except under extreme circumstances – and even then that parent can reestablish contact by meeting certain conditions.1
Secondly – and this is the part that surprises most people – there is no such thing as sole custody in Florida, not anymore. Florida case law and statutes abolished the concept of sole custody years ago.
But, with a creative and experienced child custody attorney on your side, you can get sole parental responsibility and accomplish many of the same goals.
Let’s take a look at how.Sole Custody v. Sole Parental Responsibility
When people talk about sole custody or full custody, they generally mean the ability to make major child-related decisions on their own without interference from the other parent. That, and the ability to decide when and how the other parent spends time with the child.
Under Florida law, these two related issues are covered by the two separate concepts of parental responsibility and timesharing.
In the simplest terms, parental responsibility refers to the authority of one or both parents to make decisions affecting their children. For example, the ability to make child-related healthcare and education decisions would both fall under the umbrella of parental responsibility.
There are three basic types of parental responsibility: shared parental responsibility, shared parental responsibility with decision-making authority, and sole parental responsibility.
Of these three, the most common parenting arrangement is shared parental responsibility where both parents are required to consult with each other and to make important decisions together.2 This is what most people mean when they use the term joint custody.
This is also the arrangement that Florida courts prefer most. The presumption is that, all things being equal, it is in the child’s best interests to have both parents equally involved in decision-making.
This sort of arrangement works fine as long as both parents are responsible, they have a fairly good relationship with each other, and they are able to communicate effectively with one another when necessary.
But, this is not always the case, and, in some extreme situations, Florida courts recognize that allowing both parents to have an equal say in upbringing could be harmful to the child.
Sole parental responsibility is the exact opposite of shared parental responsibility just as sole custody would be the exact opposite of joint custody. A parent with sole parental responsibility has the exclusive authority to make both major and day-to-day child-related decisions on his or her own without consulting the other parent.3
Keep in mind, however, that sole parental responsibility is the parenting arrangement that is least favored by Florida courts. They may recognize the need for it in some extraordinary cases, but those cases are comparatively rare and difficult to prove.
These are called custody fights and custody battles for a reason. That’s why you should have a qualified and experienced child custody attorney in your corner.How to Get Sole Parental Responsibility in Florida
Florida courts do not want to award sole parental responsibility to one parent over another. They would much rather have both parents making major child-related decisions together. It’s up to you and your custody attorney to convince the court that sole parental responsibility is in the best interests of your child.
So, how do you do that? There are a number of statutory factors that Florida courts must consider when determining parental responsibility.4 These factors include the following:
The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing 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 parent.
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. If the court accepts evidence of prior or pending actions regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect, the court must specifically acknowledge in writing that such evidence was considered when evaluating the best interests of the child.
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.
All of that said, based on our experience, you stand a better chance of getting a court in Florida to award sole parental responsibility if you can prove one or more of the following:
The parents are unable to agree on even the most routine questions of child care;5
The parents are unable to communicate directly with one another;6
The relationship between the parents has grown toxic;7
There is a history of domestic violence or child abuse;
There is a history of abandonment or neglect where the children are concerned;
There is a history of drug or alcohol abuse.
The bottom line is this – if you want a court in Florida to grant your request for sole parental responsibility, you have to prove that sharing parental responsibility with the other parent would be detrimental, or harmful, to the best interests of your child.
You can do that by showing that you are unable to communicate with the other parent effectively, that the other parent is abusive or neglectful, or that the other parent has substance abuse issues. Proving any one of these could be enough to eliminate the need for joint decision-making.Odds of Getting Sole Parental Responsibility
Even with the facts on your side, getting a Florida court to award sole parental responsibility isn’t easy, and it only happens in extreme circumstances. Having a qualified and aggressive child custody attorney on your side can increase your chances of getting sole parental responsibility, but it’s important to set realistic goals and to be just as realistic about your odds of success.
If you believe shared parental responsibility would be harmful to your child, you should discuss this with an experienced child custody attorney right away.
Your child custody attorney can help you decide whether sole parental responsibility is a realistic goal in your case. If not, it might be a good idea to consider more practical alternatives.Alternatives to Sole Custody and Sole Parental Responsibility
Partial Sole Parental Responsibility
Instead of full sole parental responsibility, you can ask a Florida court to give you partial or limited sole parental responsibility. This means that, even in cases with shared parental responsibility, the court can carve out specific areas where one parent would have the final or ultimate say.
For example, the court can require the parties to come to a joint decision on everything except issues involving school-related decisions. In that case, the court can decide that one parent is better able to make those decisions and that requiring consultation beforehand would be detrimental to the best interests of the child.
This sort of limited sole parental responsibility may be more acceptable to a Florida court where the relationship between the parents is not quite as toxic or damaged as it may be in other cases.
But, keep in mind that the level of proof required is the same. The burden is still on the parent seeking sole parental responsibility to prove that doing so would be in the best interests of the child.
This is just one area where a skilled child custody attorney can make a difference.
Shared Parental Responsibility with Decision-Making Authority
So, what do you do when shared parental responsibility won’t work, but you don’t quite have the evidence to convince a Florida court to order sole parental responsibility?
Well, it just so happens that Florida law has this situation covered and we’ve already touched on it earlier in this discussion. It’s called shared parental responsibility with decision-making authority.
You can think of shared parental responsibility with decision-making authority as somewhat of a cross between shared parental responsibility and sole parental responsibility – or, if you prefer, joint custody and sole custody.
The parents are still required to communicate with each other and they should at least try to make major child-related decisions together. But, if they cannot agree, the court can give one parent final say, or decision-making authority, over certain areas.8
For example, one parent may want the child to attend public school while the other parent thinks private school would be in the child’s best interests.
Ideally, under shared parental responsibility with decision-making authority, both parents would talk to each other and try to reach a compromise. If they are not able to do so, one parent (maybe the parent who prefers private school) gets to make the ultimate and final decision.
There are a number of factors that Florida courts use to determine whether to award one parent decision-making authority. But, generally speaking, if one of the parents has specialized training or experience, this may be the deciding factor.
For instance, if one of the parents is a medical professional, he or she may be given ultimate authority over healthcare decisions.
The past conduct of both parents can also be a strong factor in deciding who is best equipped to make certain decisions.
We recently had a case where the court gave our client the final say over the child’s extracurricular activities. This was because the other parent refused to enroll the child in any extracurricular activities and was actively sabotaging the child’s development by refusing to take the child to extracurricular activities that our client had scheduled.
In that case, the court could see that the other parent was not acting in the child’s best interests and the result was that our client was given ultimate decision-making authority.
In a different case, there was some disagreement between the parents as to whether or not their child should be tested for a learning disability. The trial court decided that the parent who refused to authorize the testing was not acting in the child’s best interests and the other parent was given the ultimate decision-making authority for healthcare decisions.
So, we’ve seen that, although sole custody and full custody no longer exist in Florida, you can accomplish many of the same goals through creative parenting arrangements like sole parental responsibility, partial sole parental responsibility, and shared parental responsibility with decision-making authority.
But, regardless of which parenting arrangement the court approves in your case, it’s important to remember that it doesn’t technically have anything to do with how much time your child spends with his or her other parent. Parenting time is a separate issue that falls under the concept of timesharing.Timesharing
Timesharing refers to the actual time that each parent spends with his or her children. It is the stated public policy of the State of Florida that both parents should have frequent and continuing contact with the children of their relationship.9
Other than that, there is no statutory presumption for or against any particular timesharing schedule. So, even in cases where one parent is given sole parental responsibility, the other parent will still be entitled to reasonable timesharing with the child.
If part of your original goal in seeking sole custody or full custody was to completely prevent the other parent from spending time with your child, you should know that it is unlikely that a Florida court would ever agree to that sort of total shutdown of contact between a parent and a child.
However, you can ask the court for certain reasonable restrictions on the other parent’s timesharing if you can prove that these restrictions are necessary to protect the child from physical, emotional, or psychological harm.
For example, you can ask the court to stop or prohibit overnight timesharing if the other parent’s home is not suitable for overnight timesharing. If the child does not have a bed at the other parent’s home, for instance, or if the neighborhood where the other parent lives is not safe, the court can restrict that parent’s timesharing until the situation improves.
You can also ask the court to order supervised visitation instead.
Supervised timesharing means that the supervised parent spends time with the child at a safe and neutral location while a visitation monitor oversees their interaction. The visitation monitor can be a professional or a family member who has been approved by the court to serve in that capacity. Supervised timesharing sessions can take place at a public location or in a private one as long as the child’s safety can be ensured.
Keep in mind, however, that supervised timesharing is the exception, not the rule. That means most timesharing between a parent and a child is unsupervised and you will have to present the court with some documented evidence of danger to the child to get a Florida court to order supervised timesharing. But, remember that it doesn’t have to be physical danger.
We had a case a few years ago where the father had a habit of arguing with his minor child through text messages and social media posts. The father and the child would hurl profanity-laced insults and accusations at each other.
The judge in that case rightly decided that the father should have known better and that his behavior was not only unacceptable, but also harmful to the child’s best interests.
The father was ordered to undergo counseling for his anger issues and his timesharing with the child was supervised until he completed his therapy sessions and was able to show that his behavior had improved.
There are two things worth noting in the above case. First, the judge did not simply cut off contact between the parent and the child. Second, the judge did not permanently order supervised visitation. Why is that?
The answer goes back to what we said before about Florida’s public policy of encouraging frequent and continuing contact between parents and children.
Florida courts will not allow for a complete cutoff of contact between a parent and a child except under extraordinary circumstances.
And even in cases where the court places reasonable restrictions on one parent’s timesharing, the court must also give that parent a chance to reestablish contact by satisfying certain conditions.The Return of Sole Custody in Florida?
Okay, so we know that Florida statutes got rid of the concepts of sole custody and full custody years ago. And we know that it is not likely to come back any time soon considering how much emphasis Florida courts put on both parents being involved in child-rearing and child-related decisions.
But, we’ve seen that, with the facts on your side, a resourceful and aggressive child custody attorney can accomplish many of the same goals as sole custody through the creative use of timesharing restrictions and parenting arrangements like sole parental responsibility, partial sole parental responsibility, and shared parental responsibility with decision-making authority.The Next Steps
The first thing that you should do is to meet with an experienced child custody attorney to discuss what approach is best for you. That’s why we offer a free initial consultation. We will answer your questions, help you to set realistic goals, and develop a customized strategy to accomplish those goals as quickly as possible.
With the help of your attorney, you should decide whether you really need sole custody or sole parental responsibility. Maybe your objectives can be achieved through partial sole parental responsibility or shared parental responsibility with decision-making authority.
Next, set a budget. Be realistic about how much you are able to spend. Child custody cases are not easy. They can cost thousands of dollars. But, if custody is an important issue for you – if the evidence is on your side, and you are committed, you can absolutely win.Conclusion
If you think sole custody or full custody is in your child’s best interests and you want to get as close to that goal as you possibly can in a Florida court, the key is to be prepared.
That means having a plan and following it all of the way through to a successful resolution of your case. And it means having the right child custody attorney who is willing to stand by you until the very end. Click here to schedule your free consultation today.
1 Ross v. Botha, 867 So.2d 567, 571 (Fla. 4DCA 2004).
2 F.S. § 61.046(17).
3 F.S. § 61.046(18).
4 F.S. § 61.13(3)(a).
5 Regan v. Regan, 660 So.2d 1166 (Fla. 3DCA 1995).
6 Regan v. Regan, 660 So.2d 1166 (Fla. 3DCA 1995).
7 Hunter v. Hunter, 540 So.2d 235 (Fla. 3DCA 1989).
8 F.S. § 61.13(2)(c)2.a.
9 F.S. § 61.13(2)(c)1.