The end of custody in Florida: finally parents are just parents.

• Author: Roy, Elisha D.

In 2004, the Family Law Section of The Florida Bar undertook the task of investigating the merit of revamping the custody statutes in Florida. The label system of primary and secondary residential parent was causing much costly litigation. After two years and hundreds of hours of volunteer time, the Family Law Section approved what became known as the 2007 Parenting Bill. Unfortunately, the bill did not make it off the ground in 2007, but was revived again and presented in 2008. Thanks to the hard work of Representative Jim Frishe (R-District 54) and Senator Evelyn Lynn (R-District 7), the bill was made Florida law effective October 1, 2008. Numerous changes were made to Ch. 61 of the Florida Statutes, as well as many other chapters, as a result of the nomenclature changes of the revised statute discussed herein. However, the substantive changes to the law are evidenced through the expansion of the factors the court must consider in determining the future of minor children when their parents' relationship fails.

Was There a Need for a Change?

Prior to the advent of shared parental responsibility, Florida applied the "tender years doctrine." The archaic belief that only a mother could properly care for the children created a presumption that the mother should receive "custody." (1) In 1982 and again in 1991, amendments to F.S. [section] 61.13 provided that a father was to receive equal consideration irrespective of the age or sex of the child. Notwithstanding these legislative measures to provide both parents with equal footing to be named the primary residential parent, the question really became: "What does being named primary residential parent mean?"

Typically, the primary residential parent receives more of the overnight timesharing than the secondary residential parent. However, nothing statutorily requires the court to award one parent more time than the other. (2) Although not actually written in F.S. [section][section] 61.13 or 61.30, the primary residential parent is usually the parent who receives child support. (3) There is a myth that the primary residential parent is the tie-breaker when there is an impasse as to decisionmaking. Nothing could be farther from the truth, as shared parental responsibility requires joint decisionmaking, and when the parties cannot agree, the dispute is brought to the court for resolution. (4) Although the parent with the children in his or her care is certainly able to make day-to-day decisions, neither parent, absent court order, has the superior right to major decisions affecting the best interests of the minor children. Further, both parents are statutorily mandated to have equal access to records and the right to in-person communications with all medical, dental, and educational providers. (5)

Although previous changes to Ch. 61 provided there were no presumptions in favor of either parent, introducing the labels of "primary residential parent" and "secondary residential parent" triggered litigation. The desire to "win" the designation of primary residential parent often surpassed the "best interests" of the children. The connotation that the "primary parent" was the superior parent fueled much litigation. Having dispelled the myths about the superiority of the "primary" label, why is there a need for labels at all?

This concept of "divorcing" labels for parents from the process of divorce is groundbreaking. Calling parents just that, "parents," will positively alter litigation in Florida. It will provide attorneys with the tools to diffuse the power struggle over the primary and secondary residential parent and enable more amicable resolution of issues involving children, which are truly in the children's best interest. By passing the new parenting law, Florida has moved into the forefront of a national trend toward mitigating the animosity and litigation in dissolution of marriage cases to preserve the family unit for the children.

What Are the Changes?

First, there are nomenclature changes. Gone are the labels of "primary residential parent" and "secondary residential parent." The concepts of custody and visitation have also been removed from the new statutory language. The much asked question that logically follows is: "What will they be called?" The simple answer: parents. The nomenclature changes require guidance as to how to govern the parent/child relationship, which triggered the second major change with the addition of the parenting plan. Numerous states have already adopted parenting plans. (6) Although not all states utilizing parenting plans statutorily mandate their use...