Divorce, where there are minor children resulting from the marriage, either born to or adopted by the couple, makes for some significant considerations. Each state has there own set of guidelines as to what happens to minor children following divorce or separation,but there are in general, four presumptions as to what will take place. A legal presumption, according to the online Legal Dictionary, is “a rule of law which permits a court to assume a fact is true until such time as there is a preponderance (greater weight) of evidence which disproves (rebuts) the presumption. Each presumption is based upon a particular set of apparent facts paired with established law, logic, reasoning, or individual rights. A presumption is rebuttable in that it cand is credited be factual evidence.” For example, a child born to a married couple is considered to be fathered by the husband unless it can be proven by evidence such as a paternity test, that some other man is the true biological father. In other words, the husband is presumed to be the father of the child unless proven otherwise. Using the above definition, the four general presumptions regarding child custody as they apply in Florida Family Law are as follows.
The presumption of joint custody: In Florida, it is presumed it is in the best interest of a minor child for parents to have joint or shared custody. This rule is mandatory unless there are extenuating, proven facts that joint custody will be detrimental to the child and the courts should rule otherwise. Joint custody usually means time spent with each parent, including overnights, will be divided as equally as possible. Such facts as child’s age, health, specific needs, and location of parent’s domicile will be considered but only in deference to what is best for the child, not in what is best for the parent. Even if both parents agree to less than joint custody, the parents will have to prove to the court why this should be so ordered.
Join custody is favored:This is when if both parents agree to joint custody there needs to be no further proof for joint custody to be granted.Otherwise, each spouse must prove that joint custody will be the best outcome for the minor children. As Florida is already a joint custody state, this presumption does not apply.
Presumption of primary custody:Three states still adhere to ordering primary custody unless proven otherwise. Florida is not one of these states.
No presumption/favor: As Florida has a presumption of joint custody, it does not fall into this category where other custody arrangements such as sole custody or supervised visitation are considered.
There are, however, situations in Florida divorce cases involving minor children when a judge will consider granting primary custody to one parent or a third party. Supervised visitation can also be then considered. If one or both parents have an alcohol or drug abuse history, have been convicted of child abuse of domestic violence, or are physically or mentally unable to care for their minor children, sole custody can be ordered. Proof must be very specific.
Clearly,Florida presumes that it is in the best interest of a minor child to have the care and nurturing of both parents on an equal basis. If the situation appears to be any different, a Florida Family Law attorney will need to be retained to make sure the proof required is adequate and hopefully acceptable to the judge.
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