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Should Florida judges presume equal time-sharing between parents to be in children’s best interests?

On Behalf of | Apr 6, 2022 | Child Custody, Visitation and time-sharing |

The jury seems to be out on the question, but Gov. Ron DeSantis has it squarely in front of him. He must decide whether to sign hotly debated legislation that would direct judges in child custody cases to begin deliberation with that presumption, subject to evidence that would rebut the presumption.

As of this writing on April 4, 2022, there is no news of the governor’s decision. SB 1796 is the third iteration of this particular package of reforms (link brings you to the Senate page about the bill, including a tab to the text). Former Gov. Rick Scott previously vetoed similar bills twice.

We previously posted about other complex issues in the bill like alimony, retirement and retroactivity, but here we focus on the 50-50 time-sharing presumption.

The proposed time-sharing presumption

The statutory subsection that would contain the proposed change starts by affirming the public policy in Florida that children should have “frequent and continuing contact with both parents” and that when parents separate, they should be encouraged to “share the rights and responsibilities, and joys, of childrearing.” This sentence would stay the same.

Currently, the text continues that parenting plans should not contain any presumption “for or against the father or mother of the child or for or against any specific time-sharing schedule …” The proposed change would substitute a presumption that “equal time-sharing of a minor child is in the best interests of the minor child who is common to the parties …”

A legislative bill analysis (available at the above link to the bill under the Analysis tab, dated March 2, 2022) explains that a “presumption in a legal proceeding is an assumption of the existence of a fact that is in reality unproven by direct evidence.” If the judge must presume 50-50 time-sharing is best for a child, it would leave it to the divorcing parties to show evidence of why this is or is not true in a particular case.

The legislative report says further that the presumption disappears if “credible evidence is introduced to disprove the presumed fact,” namely disproving the presumption that equal time-sharing is in the child’s best interest. For example, a parent may introduce information about the other parent’s behavior or qualities that are harmful to the child to show that the underlying presumption is not true in the case at hand.

The amendment also would let parents negotiate a parenting plan without the presumption.

The two sides

The idea of a presumption that a 50-50 split in time-sharing is in a child’s best interest is sometimes associated with father’s rights. Advocates for this position feel that the historical bias toward mothers being the more important parent can be minimized with such a presumption. At least the custody trial could begin with the parties on equal footing, subject to contrary evidence.

On the other hand, opponents to the presumption express concern that it could give unwarranted or even harmful child access rights to parents with problems like substance abuse, mental health symptoms or even criminal behavior, including domestic or child abuse. These opponents point out in the media that a parent may not understand how to rebut the presumption if they do not have legal counsel.

We wait with keen interest the governor’s decision on this bill.

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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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