Feb13

The New World Of Parenting Plans

spouses solving marital problems

Debunking the myth of a bias towards Women

In the course of my practice, I have often heard out of the mouths of my male clients; “Yeah, I know that the law is slanted towards Mothers.”

I find the statement quizzical.  Ultimately, I would not give the sentiment much credit if it were not for the fact that I have heard it so often that I have to assume there is some repository of Family Law knowledge out there that is specifically taught to men that I somehow missed out on in my study of the law.

Most of the time the notion is expressed as related to the court determination of a time-sharing plan and child support.  Now while I find the perception of the Mother/Woman bias to be vaguely supported by the statistics (i.e. historically, mothers have received the majority of majority custodial responsibility), it is not factually accurate that the “law” is facially biased.   In fact, the law goes out of its way to be neutral, or impartial on its face.

Florida Parental responsibility laws state

  1. 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. There is no presumption for or against the father or mother of the child or for or against any specific time-sharing schedule when creating or modifying the parenting plan of the child.
  2. The court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child. Fla.Statutes §61.13(c)1,2.

As you can see, the law promotes equality and specifically prohibits a presumption in favor of the mother for time-sharing purposes.

The historic imbalance (and hence the perception) is a by-product of historical paradigms which are changing.  Once upon a time it was commonplace for the Father to be away working, and the Mother spending the overwhelming majority of time with the children.  So when it came time for a Judge to consider the best interest factors (such as routine, and knowledge of the children’s records) the Mother held a distinct advantage.

Another reason for the historical imbalance is Florida’s legitimacy laws (which I will discuss in another article).  These laws identify only the Mother as the legal guardian of a child if the parents were not married when the child was conceived or born.  This natural advantage gives the Mother legal control of the child’s welfare until the biological Father acquires a court order establishing his paternity.   So again, when it came time for the courts to consider the children’s normal routines, the Mother had a natural head start.  Then there are other natural factors like the Mother nursing, etc. that played a role in the historical imbalance.  As these societal norms have changed, so must the law.

The reality is that Florida is stepping forward with the changing times, and as you can see, the current language of our statutes gives at least a hint of equal rights to time-sharing.

Florida parenting planning now closer to equality

This does not mean that the other misconception that I often hear is true either.  Namely, that the law now means the Father gets automatic 50/50 time-sharing.  The appellate courts have specifically ruled that the language of the statute does not compel a Judge to implement an equal time-sharing plan.  So on the one side, while the legislature has shaded towards language that logically means 50-50 plans, the Judiciary has reserved the power to the Courts to determine a parenting plan that is in the best interests of the child, and divide the time-sharing however the judge sees fit.

Because the best-interests-of-the-child statutory factors are amongst the most numerous of the domestic relations analysis factors, the best course of action to achieve the type of parenting plan you desire is to hire an experienced family law attorney, who is familiar with all 20 factors the court will have to consider.

This article is written by Marc Dwyer, a partner at Chiumento Dwyer Hertel Grant

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