Time After Time: The Evolution of Time-Sharing in Florida

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On June 27, 2023, House Bill 1301 was signed into law and revised Section 61.13, Florida Statutes, regarding time-sharing determinations. As of the effective date of the new law, July 1, 2023, there is now a rebuttable presumption that equal time-sharing is in the best interests of minor children.

The law previously stated there was no presumption for or against the father or mother of the child or for or against any particular schedule. Notwithstanding the prior language of the statute, the revised law recognizes and now codifies what the Courts have been informally doing for years, making equal time-sharing the starting point for its determinations.

Florida has come a long way in modernizing its time-sharing law having previously followed the tender years doctrine. That doctrine had been used by the Courts to give primary custody of younger children to the mother, believing that those children would be better off in the care of the mother, rather than the father. This archaic doctrine was ultimately replaced with an analysis of what was in the best interests of the child.

Once the best interests of a minor child became the law in Florida, “time-sharing” replaced the designations of “custody”, “primary residential parent” and “visitation” that had previously been used. Neither parent is now afforded greater or superior rights simply having been designated the “custodial” or “primary residential” parent. Florida has adopted the policy that children should have frequent and continuing contact with both parents, unless doing so would jeopardize the health and safety of the child.

Presently, to rebut the presumption of equal time-sharing, a party objecting to that schedule has the burden to prove by a preponderance of the evidence (that it is more likely true than not) that equal time-sharing is not in the best interests of the minor child. The Court is required to evaluate the twenty statutory time-sharing factors and must include specific written findings of fact as to each. These factors focus on each parent’s knowledge of and involvement in the child’s life. The child’s best interests remain the primary consideration in the Court’s determination of a time-sharing schedule.

In addition, the new law has revised the standard to seek modification of existing time-sharing schedules. A party seeking modification must still prove a substantial and material change in circumstances and that a modification of the time-sharing schedule is in the child’s best interests. However, it is no longer necessary for the party to prove that the change in circumstances was unanticipated.

Finally, if at the time of entry of the time-sharing order the parents are residing more than fifty miles apart and one parent subsequently moves within fifty miles of the other parent, that move may be considered as a substantial and material change in circumstances for purposes of seeking a modification of the time-sharing schedule. The Court must still make a determination that the modified time-sharing schedule requested is in the child’s best interests.

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