The Issue of Custody in Florida Divorce Cases

Before 1982, when the Shared Parental Responsibility Act became law, Florida courts in a divorce (or dissolution of marriage) case, usually awarded custody of the minor children of the marriage to one parent. “Custody” has been defined as the care and keeping of anything, including a person.

In the past, the effect of a custody award was to give the custodial parent physical possession of the child, and the right to make all decisions concerning the child, including medical care, education, religious training, and all other aspects of the child’s life.

Under the present statutory law, parents are to have shared parental responsibility (sometimes called legal custody) for the care, custody, and control of their children unless the court determines that shared parental responsibility would be detrimental to the children.

In 2008, the Florida legislature enacted amendments under which the terms “custody” and “visitation” are eliminated and replaced with the term “timesharing.” Also, written “parenting plans” must be established in cases involving minor children.

The issue of “custody” can also be adjudicated by the court in other cases besides divorce, including paternity cases.

Divorce in Florida

Prior to 1971, a divorce, or dissolution of marriage in Florida, could only be granted on a showing of fault (for example, adultery, extreme cruelty, intemperance or drug addiction). On July 1, 1971, the Marriage Dissolution Act took effect, which provided two legal grounds for a divorce: that the marriage is irretrievably broken; or, that one of the parties is mentally incapacitated.

A marriage that is irretrievably broken has been defined as one in which the marriage relationship is for all intents and purposes ended, no longer viable, a hollow sham beyond hope of reconciliation or repair. In reality, if a person alleges that his or her marriage is irretrievably broken, it usually is, and will be the basis for the granting of the divorce.

Although fault, misconduct, or wrongdoing on the part of either or both parties may no longer be considered by the court as the sole basis for granting a divorce, sometimes misconduct may be relevant to other issues in a divorce case, such as custody, alimony, or equitable distribution of assets.