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Shared decision-making between divorced, separated or unmarried parents, part 1

On Behalf of | Apr 29, 2022 | Child Custody, Parental responsibility |

Private Montessori or public kindergarten? Basketball or piano lessons? Church, temple, mosque or none of these? Vaccinate or not? Parents often have understandably strong feelings about these kinds of important life decisions for their children – and they have certain rights to raise their children as they see fit based in the U.S. and Florida Constitutions.

What happens when parents disagree about life decisions for their kids, but they are divorced, separated or were never married? In divorce and other family law matters that end up in court, the judge can assign official decision-making powers, called in Florida law “parental responsibility,” to both parents on a shared basis, to one parent solely or to both with a more complex structure in which one may have ultimate decision-making power or responsibility is split between them issue by issue.

Today we focus on shared parental responsibility, followed by the other types in our next two posts.

Shared parental responsibility

Florida law says that parental decision-making powers control matters of children’s health care, education, activities and other important issues unique to a family or child. State public policy “encourage[s] parents to share the rights and responsibilities, and joys, of childrearing.” To that end, the judge must order shared parental responsibility of a minor unless it would be “detrimental” to that child.

Showing detriment

To determine whether shared parental responsibility (sometimes called legal custody) would be detrimental, the court can consider the wishes of the parents, but the best interests of the child is the overarching standard. If one parent objects to shared parental responsibility, that party must prove it would be detrimental to the child as shown by “substantial competent evidence.”

Importantly, “the court shall consider evidence of domestic violence or child abuse as evidence of detriment to the child.”

Detriment must be something worse than hostility between parents. For example, in Musgrave v. Musgrave, the trial court said that the father was “spiteful, vengeful, and not credible” as a basis for finding detriment in shared parenting responsibility. The appeals court disagreed, saying that parental animosity alone is not enough to show detriment to the child from shared parental decision-making. Just because parents have relationship problems between them does not always mean they cannot make appropriate decisions together for their shared children.

Rebuttable presumption of detriment

If a parent has a history of certain kinds of criminal activity, a rebuttable presumption exists that giving them parental responsibility would be detrimental to the child.

That parent may introduce evidence to disprove detriment and rebut the presumption, despite their criminal history. If the court finds in writing that the parent “poses no significant risk of harm to the child and that time-sharing is in the best interests of the minor child,” the presumption is defeated. If the parent with criminal history cannot rebut the presumption of detriment, the court cannot give them parental responsibility powers.

Takeaways

To summarize, a Florida judge must order shared parental responsibility unless it would be detrimental to the child. In the next two posts, we will explore the other two kinds of parental responsibility.

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The Law Office of Forrest & Forrest, PLLC represents individuals in Fort Lauderdale in high-asset divorce matters. Daniel Forrest is board-certified family lawyer and mediator serving the South Florida area.

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