Imagine that your 15-year-old child expressed a clear desire to live only with you because of chronic low-level tension with your co-parent. You may think that presenting the child’s wishes to the court will seal the deal on your timesharing plan.

And you would be wrong.

While your child’s opinion matters, other factors come into play when deciding upon timesharing specifics – things your child may not have the ability to perceive or to analyze appropriately, even if your child has always been smarter than similarly situated peers.

Florida Statute 61.13 lists many factors that the court may consider in making timesharing (i.e., custody) decisions, including “the reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.” Note the absence of a specified age. Instead, the court posits its own judgment of a child’s ability to make such a decision. However, judges will usually not entertain feedback from a child who is not yet a teenager.

Even when a child expresses a clear preference for time with one parent over the other, the court must observe the “best interest of the child” standard through evaluating nineteen additional factors. Your child’s opinion, however persuasive, is not ultimately determinative. The child’s preference is just one more factor to consider against a long list of other factors.

First, the judge must consider whether involving a child in litigation is in the child’s best interests at all. To that end, when the judge wants to hear about the child’s feelings on timesharing, the judge will often appoint a Guardian Ad Litem (GAL) to speak to the child and to represent the child’s best interests in court. Employing the services of a GAL allows the court to shield children from unnecessary exposure to litigation while allowing the child to make some contribution, if appropriate, to proceedings.  The GAL does not advocate or represent either parent; the GAL acts only for the child’s interest.

Don’t forget that regardless of your child’s opinion, Florida upholds public policy that protects the interests of both parents: “It is the public policy of this state that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys, of childrearing” Fla. Stat. § 61.13.

So… your child’s stated preference is not the slam-dunk to getting the timesharing outcome you wanted. How should you proceed?

1. Recalibrate your expectations.It’s not just each parent who has a right to the child. Children themselves have a right to time with both parents. Realistically, if you and your partner stayed together, the child would have to deal with the ups and downs of the relationship with each parent. The end of the parents’ union does not allow the minor child to end the relationship with one parent, absent a showing of abuse or other dangerous or problematic behavior.

2. Make your timesharing meaningful. Your child’s time with you should be quality time aside from the regular daily grind of school or daycare and chores.

3. Make your environment as kid-friendly as possible.The court notes and rewards parents who reflect the “best interest of the child” in the physical environment of your home.

4. Avoid negativity in words and acts.When you set a poor example for your child through hostile words or acts toward the child’s other parent, you are not acting in the best interest of the child. Ultimately the resulting damage is done to the child, not to the other parent, and the judge can see it.

5. Foster timesharing with the other parent.Given the public policy of Florida and its courts, respect the timesharing given to your co-parent so that you can receive the same treatment, even if the court must enforce your right to time with the child. Keep your timesharing record spotless in the eyes of the judge. If you play games with your co-parent’s timesharing, you sabotage your own goals.

If your co-parent disregards your timesharing, or if you need a modification of your current timesharing arrangement, please contact us.

Warning: All posts on this website and partner website, JustPrenups.com, contain general information about legal matters for broad educational purposes only. The information is not legal advice and should not be treated as such. This blog post does not create any attorney-client relationship between the reader and the DADvocacy™ Law Firm.