By Attorney Alejandro R. Lopez
Many of my prospective clients sometimes come to their first interview in a divorce or custody case asking if he/she can obtain “full custody” of the child or children in the case. It seems that, on the street and regular day life, people talk to each other on the terms of: “I will take away the children from you and I will get full custody”; or “I will get full custody of the children and not you”; or “Go ahead and ask the Court to give you full custody”. The reality is quite a bit more complex.
The United States Supreme Court some years back interpreted the United States Constitution as giving both parents (the mother and the father) of a minor child or minor children a “fundamental right” to be parents. This usually means that the government can only interfere in issues dealing with minor children when their health, safety, and well being are in serious and immediate danger (Florida Department of Children and Family Services intervenes and takes the children away). In the meantime, the government entities back out and look at a possible bad relationship between both parents but do not interfere until there is plain evidence and proof that the children are in imminent and close danger. Of course, everyone has a different opinion as to what this imminent and close danger could be. Specially when both parents are fighting over the children’s custody (either parent has an opinion that the other is placing, or has placed, the child or children’s welfare and well being in imminent danger).
In Florida, the legislature eliminated the words “custody” and “visitation” some time back. The words “full custody” are and, to certain extent, were legally improper and not having any basis under Florida law. There was also a time when one of the parents was called the “primary residential parent” and the second parent the “secondary residential parent”. Not any longer. Now, in Florida, both parents are to “share” their “time” with their minor children. This “timesharing” could mean 50/50 with the mother and the father, or 80/20, or 60/40, or many other ratios of similar time. The time ratios depend on the Court’s consideration of several factors mentioned by the law under Florida Statute 61.13. It is highly unusual for a parent to have 100% of the time sharing and the other parent to have 0%. Usually Courts would do such a split of 100% to one parent and 0% to the other in certain cases (for instance, a father who has been extremely violent, or is incarcerated, or some other factor of weight). So, in very few cases there is a timesharing set that way.
In addition, there is a concept in Florida called “parental responsibility”. This parental responsibility means the rights and obligations of a parent to make major decisions related to his/her minor child or children (health, education, religion, etc.). The parental responsibility can be either “shared parental responsibility” or “sole parental responsibility”. Shared parental responsibility makes both parents talk to each other and enter into a dialogue and discussion with each other PRIOR to either parent making a major decision regarding the child or children (even if the child or children reside more time with one parent than with the other, for instance 80% of the time with the mother and 20% of the time with the father. In that instance, if there is shared parental responsibility the mother would not be able to make major decisions regarding the minor child without consulting the father prior to making such decisions and both parents be in agreement). When there is “sole parental responsibility” the parent having said sole parental responsibility has the absolute right to make any and all decisions regarding the minor child or children without consulting the other.
Again, it is difficult to obtain a Court order granting one parent “sole parental responsibility” because violence, abuse, sexual abuse, incarceration, abandonment by one parent (there are legal definitions for abandonment) or other similar factor, must be proven before a Court to be able to obtain sole parental responsibility for one parent.
Thus, for one parent to have what, on the streets, is called “full custody”, that parent must have (at least) a signed and entered Court order or judgment by a Judge of competent jurisdiction, granting that parent:
100% of the timesharing with the minor or minor children, or “no timesharing” for the other parent, AND
“sole parental responsibility” of the minor child or children.
Again, it is legally extremely difficult in most domestic relation cases for a lawyer to obtain both (100% timesharing for one parent but 0% to the other and sole parental responsibility for one parent) through a Court order, since, as we remember at the beginning of this article, parents have a “fundamental right to be parents” under the U.S. Constitution and those fundamental rights must be curtailed or limited only in certain specific cases where the minor child’s well being, welfare, and safety are in imminent danger.