Child Custody and Child Support
Can custody rights be modified in my state ?
When a couple is getting a divorce, it often involves extreme emotional stress, including sadness, anger, and guilt. This is magnified when there are children who are being impacted by the divorce. Florida has clear guidelines when it comes to determining child custody and support matters and will make decisions based on the best interest of the children.
Florida Child Custody Determination
Florida courts determine child custody issues under the Uniform Child Custody Jurisdiction and Enforcement Act. Parents have the opportunity to create a time-sharing and decision-making agreement in the form of a Parenting Plan that will govern the custody relationship. If they cannot agree, or if the court decides that the Plan submitted by the parents was not in the best interest of the child, then the judge can enter a different Parenting Plan into the divorce decree.
The best interest of the child is the overriding focus of the court’s scrutiny. If the judge decides that granting one parent sole parental custody, with or without an order permitting visitation of the other parent, is what will best satisfy the best interest of the child then that will be the court’s order. When making a determination of what will be in the best interest of the child, the court will evaluate:
- Which parent will facilitate an environment in which the child has frequent ongoing contact with the nonresidential parent;
- Which parent will avoid making the child aware of any ongoing legal action involving this other parent;
- The relationship of the child with each child, including the strength of the emotional connection, as well as the overt signs of love and affection;
- The ability and willingness of each parent to provide the basic necessities to the child, including food, clothes, medical care, and other essential material requirements;
- The developmental needs of the child and the ability of each parent to satisfy those needs;
- The schooling and extracurricular needs of the child and the ability of each parent to satisfy those requirements;
- The period of time in which the child has been is a particular environment, the stability of that residence, and the benefits of maintaining that circumstance;
- The ability of each parent to maintain a home environment which is free of any substance abuse;
- The nature of the custodial residence, including being set up to maintain an existing family environment. This can mean keeping a child with relatives in addition to a parent or siblings, including grandparents;
- The moral fitness of each of the parents;
- The physical and mental health of each of the parents;
- The available records of the child, including school, medical, community involvement, and any home evaluations;
- The expressed preference of the child, but only if the judge believes that the child possesses sufficient awareness of the situation, emotional intelligence, and understanding to make a reasoned determination about which parent he or she would want to have custody;
- Any evidence that one of the parents knowingly provided false information to the court in a domestic violence, sexual abuse, child abuse, child abandonment, or child neglect legal action;
- Any evidence of child abuse by either parent, or anyone who would be in the child’s life as a result of the parent’s relationship with that person;
- Any evidence of domestic violence; and
- Any other evidence or circumstances that the court deems relevant.
(See Florida Statutes, Title VI-Civil Practice and Procedure, Chapter 61).
Child Support Determination
Child support is determined in accordance with Florida statute 61.30. Under Florida law, each of the child’s parents has the obligation to support the child. By making the calculation a matter of statute with little room for deviation, Florida has eliminated most of the argument and back-and-forth that is found throughout many other parts of a Florida divorce.
Florida uses the Income Shares Model to determine child support obligations when one parent has primary custody of the child, which means that the nonresidential parent has the child for less than twenty percent (20%) of the time. This determination of support looks at the resources that the child would have received if the parents had not gotten divorced. This amount of support is then apportioned to the parents. This model is comprised of guidelines that consider the combined income of the parents and the specific financial contribution of each of the parents.
In addition to determining support payments, the court may order that health insurance be maintained for the children if the cost is reasonable and the children have access to the insurance. A reasonable amount is five percent (5%) or less of the gross income of the parent who is directed to provide the insurance.
In order to make the calculations as clear as possible, Florida courts have created a Child Support Guidelines Worksheet, which guides the parents through the calculations. A person going through a divorce proceeding typically will fill this out with his or her attorney.
The Income Shares Model takes the income of each parent, reviews the statutory guidelines for the specific income level, and determines the appropriate amount of support. This is known as the Total Minimum Child Support Award.
Under certain circumstances, the court may order the spouse paying child support to purchase a life insurance policy or bond in order to be certain that future child support payments will be made.
If the Parenting Plan custody arrangement includes each parent having the child more than twenty percent (20%), more of an equal time-sharing, then the court will utilize a different method of calculating support. This is referred to as the Gross-up Method. The court will follow the same procedure for determining the Total Minimum Child Support Award and then multiply that by 1.5. This is done under the theory that more money will be spent by the parents if each is maintaining a separate household for the child. The total amount is allocated based upon how much time the child spends with each parent.
Florida Child Support Time Period
Under Florida law, a parent is expected to support a child through the age of eighteen (18) years, unless the child will graduate from high school before 19 years of age, in which case, the court will order support through graduation from high school. If the child has special needs, the court may order extended support. If the child dies, the support obligation ends. The support obligation generally does not survive the death of the paying spouse.
Modification of Child Support Payments
Although there are clear guidelines and regulations that dictate child support payments, there are circumstances that a court will consider in modifying payments, either up or down, depending upon the circumstances. In order to obtain this relief, a party must file a Motion to Deviate from Child Support Guidelines. A court does have the discretion to deviate up to five percent (5%) from the guidelines without having to justify the re-calculation. For a deviation greater than 5%, the court will have to base the decision on certain factors. These include:
- Unexpected and excessive expenses relating to medical, dental, educational, or psychological needs;
- The financial situation of the child, including additional sources of income not including supplemental security income – for example, this could be a trust set up by a relative or a windfall from an unexpected personal success;
- Support of a parent;
- Seasonal swings in income;
- The age of the child, focusing on greater needs of older children;
- The special needs of the child;
- The total resources and assets of each of the parties, including the child;
- Tax benefits and credits;
- Payments resulting from a single child support order exceeding fifty-five percent (55%);
- Specifics of the Parenting Plan; and
- Any other modification that is necessary to achieve an equitable result.
Enforcement of Child Support Payments
The Florida Department of Revenue generally is responsible for the enforcement of child support obligations. When a party fails to make payments, there are measures available to force compliance or punish non-payment. These include:
- Suspension of a Florida driver’s license;
- Interception of both state and federal tax refunds;
- Fulfilling support obligations through any unemployment of worker’s compensation payments;
- Garnishing wages;
- Interception of any Florida lottery winnings totaling more than six hundred dollars ($600);
- Placing liens on cars, boats, or other property that the party owns;
- Reporting the amount of unpaid support to the credit agencies;
- Placing a freeze on bank accounts or removing funds from those accounts; and
- Issuing an arrest warrant and prosecuting the party for non-payment of support.
Evaluating the best interest of the child involves a complex balancing of factors, including emotional, physical, and financial. It is imperative to be aware of what a court will review in order to present the most persuasive proposed living environment to gain primary custody of the children. In addition, the totality of the child and parents’ situation will be considered by the court in determining the child support award if a deviation from the guidelines is needed. Putting together a compelling case is necessary to obtain a equitable outcome for everyone, especially the child or children.
Consult an Experienced Florida Custody Attorney
If you are filing for custody or divorce in Florida or have been served with a Petition for Dissolution of Marriage and have children who will be impacted by the legal proceedings, the skilled and compassionate attorneys at Ayo and Iken PLC are ready to aggressively protect your rights and ensure that you receive everything that you and your children deserve. Zealously representing the interests of our clients and their children in Miami, Orlando, Tampa, Clearwater, Lakeland, Wesley Chapel, and New Port Richey, Florida, we are committed to obtaining a fair and just resolution of your child custody and support proceedings. We understand how difficult this situation is for you and invite you to meet with us for a free consultation, where we will learn the hardships that you face and present your legal options. To schedule an appointment, please call us at 800-469-3486.
More Reading: Child custody overview, Getting custody and support, Relocation of children, Temporary permission for relocation. Tax exemptions, Custody evaluation, Parenting plans, Sole custody, Grandparent visitation, How to win a custody case, Modifying a parenting plan, Step parent adoption, Termination of parental rights, Child custody jurisdiction, Parental abduction, Establishing paternity, Denying paternity, Fathers rights - not on the birth certificate, Divorce after adoption, Helping children after divorce, Parenting after splitups, Parental alienation