Counter Arguments to Misstatements about Child Custody Under SB 668

It's only fair to share...Share on FacebookTweet about this on TwitterShare on Google+Pin on PinterestEmail this to someone

Today SB 668 was delivered to Governor Scott by the Senate. The Governor now has 15 calendar days ( until end of April 19th ) to sign or veto the bill.  Senator Stargel, the Senate sponsor of the bill, met personally with the Governor today before delivering the bill.

The following document identifies and responds to the common misstatements and specious arguments that have been made recently by the Family Law Section of the Florida Bar and by other opponents of SB 668. This document was delivered today to Governor Scott along with SB 668 and it was put together by the legislative assistants of Senator Lee’s office ( especially Judicial Staff Director Tom Cibula) with input from Senator Lee, Senator Stargel, Rep. Burton, and Alan Frisher,  the president of Family Law Reform.

(Note: specious is defined by the Merriam-Webster dictionary as: falsely appearing to be fair, just, or right : appearing to be true but actually false)

Document delivered along with SB 668

Child Custody Under SB 668

The child-custody provisions of SB 668 put parents on equal footing during child-custody determinations. Existing law declares a vague public policy that each minor child have “frequent and continuing contact” with both parents after they separate or divorce. What this public policy means can vary from judge to judge.

The bill replaces the vague policy, with a requirement that courts begin a custody determination with the premise that a child should spend “approximately equal time” with each parent. The court must then take into account a child’s best interest by considering 20 statutory factors that are based on current law. Finally, the bill requires courts to explain their child-custody determinations in writing.

The changes to the child-custody law are driven by well-known societal changes. For example, there are more two income households than ever.1 Women are more likely than men to have a college degree, and women are pursuing more graduate degrees than men.2 Forty percent of households with children have a female breadwinner, a dramatic increase since 1960.3 Additionally, fathers have become more active in raising their children.4

Unfortunately, many incorrect statements and specious arguments have been made about what SB 668 says and how the bill will affect children and custody litigation. The remainder of this document identifies and responds to the common misstatements and specious arguments.

1 KIM PARKER, PEW RESEARCH CENTER, 5 FACTS ABOUT TODAY’S FATHERS (June 18, 2015) available at: http://www.pewresearch.org/fact-tank/2015/06/18/5-facts-about-todays-fathers/.
2 EXECUTIVE OFFICE OF THE PRESIDENT OF THE UNITED STATES, ELEVEN FACTS ABOUT AMERICAN FAMILIES AND WORK 10-11 (Oct. 2014), available at: https://www.whitehouse.gov/sites/default/files/docs/eleven_facts_about_family_and_work_final.pdf .
3 WENDY WANG, KIM PARKER, AND PAUL TAYLOR, PEW RESEARCH CENTER, BREADWINNER MOMS (May 29, 2013) available at: http://www.pewsocialtrends.org/2013/05/29/breadwinner-moms/.
4 Parker, supra note 1.

 

Misstatement: Equal time-sharing/custody is the default

Senate Bill 668 requires a court to begin a child-custody determination with “the premise that a minor child should spend approximately equal amounts of time with each parent.” The bill does not establish a presumption for equal time-sharing or establish equal time-sharing as the default child-custody arrangement. For an example of a presumption for equal time-sharing, see SB 250 (2016).5

By definition, a premise is a starting point for reasoning. Accordingly, the premise of equality in the bill is a starting point for judicial reasoning based on evidence in a child-custody case. By defining the starting point for custody decisions, the bill prohibits the use of other starting points, such as judicial biases.

The opponents have incorrectly stated that the premise in SB 668 is the same thing as a presumption. A presumption, however, establishes facts that can be overcome only with contrary evidence. Nothing in the bill changes a parent’s evidentiary burden. A court order establishing a parenting plan or time-sharing schedule must simply be supported by evidence, which is required under existing law.

Misstatement: Courts are not required to consider the 20 statutory factors

The idea that a judge is not required to consider all 20 of the factors in s. 61.13(3), F.S., is factually wrong. Lines 489-492 of the bill state, “the court shall formulate a parenting plan and time-sharing schedule taking into account the best interest of the child after considering all of the relevant factors in [s. 61.13(3), F.S].” The bill also states that the “court shall make detailed written findings of fact which support and justify any parenting plan or time-sharing schedule that is not based on an agreement between the parents.”
The premise in SB 668 is modeled after s. 61.075, F.S., which requires courts, in distributing the assets and liabilities of parties to a divorce, to “begin with the premise that the distribution should be equal.”6 A court order making the distribution must also include “specific written findings of fact.”7 Appellate courts have repeatedly reversed and remanded trial court equitable distribution orders that did not include sufficient findings of fact justifying a distribution.8

5 In contrast to SB 668, SB 250 created a presumption favoring equal time-sharing by stating, “Equal time-sharing with a minor child by both parents is presumed to be in the best interest of the child.” The presumption was strengthened with a requirement that a court order establishing a time-sharing schedule providing for unequal time-sharing be supported with written findings of fact.

6 Section 61.075(1), F.S.
7 Section 61.075(3), F.S.
8 See e.g., Guobaitis v. Sherrer, 18 So. 3d 28 (Fla. 3d DCA 2009).

 

Similarly, a trial court that fails to consider the 20 child-custody factors and make the required written findings will be reversed on appeal.

Specious Argument: The time-sharing/custody premise creates difficulties for parents who cannot afford a lawyer

Senate Bill 668, like existing law, requires courts to base child-custody determinations and other decisions in a divorce case on evidence, regardless of whether the parties are represented by an attorney. Any decision not based on the evidence would be arbitrary or otherwise unfair.
Courts routinely work with and assist unrepresented parties in divorce cases. For that reason, there are self-help clinics, and the court system has made available on the Internet a substantial amount of self-help materials and forms.9 One of these forms includes Family Law Form 12.995(a), Parenting Plan.10 Because the bill makes only slight alterations to the existing 20 child-custody factors, the court system should be able to revise its self-help materials very quickly.

Additionally, a court may fulfill its duty to make a custody decision based on evidence by obtaining testimony about the relevant child-custody factors from parents or their child. In fact, s. 90.615, F.S., makes clear that courts are authorized to call witnesses and interrogate them.

Specious Argument: Legal presumptions on time-sharing/custody do not serve the best interest of children

As previously explained, SB 668 establishes a premise or starting point for reasoning based on the evidence. It does not create a presumption for custody or timesharing. Moreover, the bill retains the requirement that custody decisions be based on the best interest of the child. Specifically, lines 489-492 state, “the court shall formulate a parenting plan and time-sharing schedule taking into account the best interest of the child after considering all of the relevant factors in [s. 61.13(3), F.S].” The premise of equality will ensure that the best interest standard is applied with more predictability and uniformity from judge to judge.

9 FAMILY LAW SECTION OF THE FLORIDA BAR, FAMILY LAW HANDBOOK page 9 (Jul. 1999), available at: http://www.mypalmbeachclerk.com/uploadedFiles/FamilyLawHandbook%20English.pdf; FLORIDA COURTS, FAMILY LAW FORMS, available at: http://www.flcourts.org/resources-and-services/family-courts/family-law-self-help- information/family-law-forms.stml.
10 FLORIDA COURTS, INSTRUCTIONS FOR FLORIDA SUPREME COURT APPROVED FAMILY LAW FORM 12.995(A), PARENTING PLAN (11/15), available at: http://www.flcourts.org/core/fileparse.php/533/urlt/995a.pdf.

 

Specious Argument: Written findings may be harmful

The bill requires a court to make detailed written findings of fact which support and justify any parenting plan or time-sharing schedule. The reason for this requirement is that child-custody determinations are important, even life-altering, for the parents and the child.11 The statutes are full of similar requirements that important judicial determinations be supported by written findings.

Written findings build confidence in the judicial system as they show litigants that they are being treated fairly and that custody decisions are based on the facts and the law. Accordingly, a judge who makes written findings of fact is better able to evaluate whether his or her decision is based on facts and logic, rather than personal bias.

There are many pieces of information about a child or family that can be publically released as part of a divorce case. The public nature of these proceedings is generally necessary for the public to have assurance that everyone is treated equally under the law. With respect to a child, nothing may be considered more private than information about domestic violence, sexual violence, and child abuse. Nonetheless, when a court considers evidence of this kind, under existing s. 61.13(3)(m), F.S., the “court must specifically acknowledge in writing that such evidence was considered when evaluating the best interests of the child.” The opponents to the child-custody provisions of SB 668 who object to the written findings requirement have not complained about the requirements for written findings in s. 61.13(3)(m), F.S.12

Specious Argument: The bill empower fathers to gain custody in order to reduce child support obligations or exact concessions

The opponents of the bill claim that fathers will seek custody in order to reduce child support or to obtain other concessions from the mother. Unfortunately, it’s well known that children are used as leverage by both parents in divorce cases to gain advantages in property settlements and alimony. If anything, the custody provisions of the bill level the playing field.

Clearly, children are better off when they have strong relationships with two loving parents, and time is necessary to build these relationships. Because the bill tilts child-custody determinations in routine cases toward equality, children in these cases will be better off.

11 Although detailed written findings are not currently required, “[t]he better practice is for the trial court to thoroughly address the relevant considerations in its written order.” Jeffers v. McLeary, 118 So. 3d 287, 291 (Fla. 4th DCA 2013) (quoting Nunes v. Nunes, 112 So. 3d 696, 702 (Fla. 4th DCA 2013)).
12 Additionally, several statutes in chapter 39, F.S., which governs dependency, require courts to make written findings about child abuse, domestic battery, etc.

 

Specious Argument: A parent will be harmed if the other parent awarded equal custody fails to exercise visitation

A common argument against SB 668 is that a parent will seek equal custody to reduce a potential child support obligation and then fail to exercise visitation rights. Under existing s. 61.30(11)(c), F.S., a parent’s failure to regularly exercise time-sharing as set forth in a parenting plan, court order, or agreement is a substantial change of circumstances which is grounds for the retroactive modification of a child support award. Section 61.30, F.S., is not changed by the bill.

Specious Argument: The premise could be abused in paternity cases to reduce or eliminate child support obligations

Opponents to the bill claim that the premise “could be used by a parent in a paternity case, where the parent hasn’t seen a child in years, to attempt to lower or avoid child support payments.”13 In contrast to the opponents’ claim, the bill does not change the standard to modify a child-custody order. Under existing s. 61.13(2)(c), F.S., which is preserved in lines 479- 485 of the bill, a child-custody order may not be modified except upon “a showing of a substantial, material, and unanticipated change of circumstances.” Further, any modification must be consistent with the best interests of the child.14

Specious Argument: The premise is inconsistent with breastfeeding needs

Appellate court opinions show that courts have the authority to address breastfeeding needs in child-custody orders.15 Nothing in the bill prevents courts from continuing to consider these needs.

Specious Argument: Psychological studies do not support equal time- sharing

Opponents to the custody provisions of SB 668 have claimed that psychological studies do not support equal time-sharing or that equal time-sharing is inconsistent with a child’s need for

13 Lloyd Dunkelberger, Florida Bar’s Family Law Section urges Scott to veto alimony legislation, HERALD-TRIBUNE (Mar. 29, 2016) available at: http://www.heraldtribune.com/article/20160327/NEWS/160329706/2062/NEWS?Title=Florida-Bar-urges-Scott- to-veto-alimony-legislation-.

14 Holland v. Holland, 140 So. 3d 1155, 1157 (Fla. 1st DCA 2014).
15 See Buccini v. Sonara, 989 So. 2d 1288 (Fla. 4th DCA 2008); Ancikovsky v. Ancikovsky, 941 So. 2d 399 (Fla. 3d DCA 2006).

stability. Psychologists’ opinions about child custody and family relationships have changed dramatically over time. As such, any psychologically based claims should be taken with a grain of salt.

Nonetheless, the psychological studies on child custody which oppose equal custody have common flaws. These studies have small sample sizes or are limited to families having a high level of conflicts or a history of domestic violence. The 20 statutory factors in s. 61.13(3), F.S., give courts sufficient leeway to award unequal custody in high-conflict cases. Additionally, the eight references to “domestic violence” and other references to sexual violence, child abuse, child abandonment, and child neglect in s. 61.13, F.S., make clear that those who engage in that conduct are highly disfavored in custody determinations.

What may be the only broad-based study on the psychological impact of equal custody was published in April 2015.16 It was conducted using a national classroom survey of all sixth and ninth grade students in Sweden, where equal custody is the norm.17 The study concluded that children spending approximately equal time with both parents suffered fewer psychosomatic problems (a physical disorder, caused or influenced by, emotional factors) than those living primarily with one parent.18 The results of the study refute the hypothesis that frequent movements between parents is too stressful for children.19

Specious Argument: By potentially providing for more equal time- sharing arrangements child support payments will be reduced

Under existing s. 61.30, F.S., a child support obligation follows the child based on the percentage of overnights the child spends with each parent. This bill does not change the calculations for child support. Although the lack of financial resources may causes difficulties for some families, the remedy is not to deny children of poorer families the benefits of spending time with both parents. Moreover, the opponents to the bill have not offered any solutions.

Under existing s. 61.30(16), F.S., and 42 U.S.C s. 667, the child support guidelines are reviewed every 4 years. The most recent study was completed by the FSU Department of Economics on December 15, 2013. As such, the next review must be completed by December 2017. If it can

16 Malin Bergström, Emma Fransson, Bitte Modin, Marie Berlin, Per A Gustafsson, Anders Hjern, Fifty moves a year: is there an association between joint physical custody and psychosomatic problem in children? (April 28, 2015) available at: http://jech.bmj.com/content/early/2015/04/09/jech-2014-205058.full.pdf+html.
17 Id. at 1.

18 Id. 19 Id.

be argued that the equal time-sharing component of the bill creates the need to adjust the child support guidelines, that issue can be thoroughly examined during the next study.

 

The following two tabs change content below.