Written by Jerome H. Poliacoff, PhD and Netta Shaked, PhD

A Rose by Any Other Name?

Florida’s change in the statute providing for a presumption of equal time-sharing for divorcing parents leads to an oft-asked question:

Considering the change in the statute providing for a presumption of equal time-sharing do you believe there will be a decrease in the number of parenting plan evaluations and social investigations?

The 50/50 Presumption Rationale

The guiding principle for implementing the fifty-fifty presumption was, presumably, to simplify the public policy of “… frequent and continuing access…” as previously articulated in the statute when there was no presumption “…for or against any specific time-sharing schedule” in favor of either parent or for a particular timesharing arrangement to now asserting a ”rebuttable presumption that equal time-sharing of a minor child is in the best interests of the minor child” .

The rationale and motivation for the change may also have come, hopefully, from the evolving perspectives and social science research on parenting and the significant and meaningful role that both parents play in a child’s life post-divorce or separation.

Not All Time-Sharing Needs to be Equal: 

Real-World Exceptions to the Presumption

That same research emphasizes the quality of the time a parent spends with their child(ren) as being a salient factor in child development, not the absolute quantity of time that a parent spends with his/her child(ren).

The newly legislated presumption of equal access may not hold in the face of the pragmatics of modern family life – the court must still consider the everyday, real-world, cases which may not make a 50/50 arrangement viable with two households where, for instance, the parents’ respective living arrangements, proximity to each other’s residences, place of employment, and/or to the or a child’s special needs warrant an unequal schedule. 

Elephants Don’t Marry Giraffes:

Litigants Will Still Litigate

No mater the legislative intent the family court system remains adversarial. Parents were fighting for more than equal “timesharing” before the new presumption, and they will continue to do so after.

The new presumption does not obviate the presence in family court of the all too frequently seen high-conflict families and their high-conflict divorces nor does the presumption recognize the possibility that a source for the high conflict may be one (or both) parent’s lack of adequate parenting capacity to meet a particular child’s needs or to cope with the immediate stressor of high conflict litigation.

What is the Alternative to a Social Investigation

The number of cases for which there is a need for a psychological evaluation, parenting coordinator, or guardian ad litem will not change because the law changes.

In cases where there has been intimate partner violence, where one spouse has a mental health or substance abuse history, or where a child has special needs that one parent refuses to recognize, a full-scale social investigation may not necessarily be called for as there are family law rules already in place for the evaluation of each of the foregoing categories.

The Need for a Comprehensive Court Order

If my colleague’s fears are not to be borne out,  the court and family law attorneys will need a comprehensive order of appointment. 

A comprehensive order should articulate, in a detailed manner, the “issue” that a psychologist evaluator is being asked to evaluate and to provide a recommendation for. (Please note: the use of a generic, jurisdiction-specific form order with check boxes and limited lines for handwritten notes should not be used, as these orders do not meet the evaluator’s needs for a comprehensive order.)

With a clearly articulated order in hand, a psychologist evaluator should be able to conduct an evaluation for the court consistent with the standards, methods, procedures of a “reasonable psychologist” .

A well-written, comprehensive order, should (for a “reasonable psychologist” attuned to risk management concerns to accept the appointment) include 

(a) the question(s)questions and/or concern(s)to be answered and/or addressed, 

(b) the specifics as to how records will be released, to whom, and under what conditions, 

(c) who is responsible for payment, and 

(d) what recourse is available should a parent seek to file a complaint against the evaluator.

SUMMARY

While the fifty-fifty presumption may influence the frequency and context in which social investigations are ordered, these investigations will continue to be an important tool for courts in cases where the child’s welfare, parental fitness, or the feasibility of a 50/50 physical custody arrangement is in question. 

The overarching goal remains to ensure that timesharing decisions are made in the best interests of the child, with a preference for arrangements that allow for meaningful and substantial involvement from both parents.

[1]         Go to:  https://drpoliacoff.com/

[2]         Go to: https://sobepsychologist.com/

[3]         “A rose by any other name would smell as sweet” is a popular adage from William Shakespeare’s play Romeo and Juliet, in which Juliet seems to argue that it does not matter that Romeo is from her family’s rival house of Montague. The reference is used to state that the names of things do not affect what they really are.

[4]              This newsletter column has been expanded into a larger full-length article submitted to the Family Law Section’s Commentator for publication – for a draft of the full article, please contact the first author at [email protected].

[5]         .FS 61.13 (2) (c) 1. 2022

Except as otherwise provided in this paragraph, there is no presumption for or against the father or mother of the child or for or against any specific time-sharing schedule when creating or modifying the parenting plan of the child.

[6]         FS 61.13 (2) (c) 1. 2023

Unless otherwise provided in this section or agreed to by the parties, there is a rebuttable presumption that equal time-sharing of a minor child is in the best interests of the minor child.

[7]         See for instance:

Drozd, L., Saini, M., & Olesen, N. (Eds.). (2016). Parenting plan evaluations: Applied research for the family court (2nd ed.). Oxford University Press. https://doi.org/10.1093/med:psych/9780199396580.001.0001

Lamb, M. E. (2018). Does shared parenting by separated parents affect the adjustment of young children? Journal of Child Custody: Research, Issues, and Practices, 15(1), 16–25. https://doi.org/10.1080/15379418.2018.1425105

Nielsen, L. (2018). Joint versus sole physical custody: Children’s outcomes independent of parent–child relationships, income, and conflict in 60 studies. Journal of Divorce & Remarriage, 59(4), 247–281. https://doi.org/10.1080/10502556.2018.1454204

Steinbach, A., & Augustijn, L. (2021). Post‐separation parenting time schedules in joint physical custody arrangements. Journal of Marriage and Family, 83(2), 595–607. https://doi.org/10.1111/jomf.12746

[8]          Braver, S.K., & Votruba, A.M. (2021). Does joint physical custody “cause” children’s better outcomes? In J.M. de Torres Perea, E. Kruk & M. Ortiz-Tallo (Eds.), The Routledge international handbook of shared parenting and best interest of the child (pp. 63–77). Imprint Routledge. https://doi.org/10.4324/9781003140566

See….On the basis of this comprehensive review we conclude that joint parenting probably does cause benefits to children on average, and that social scientists can now provisionally recommend rebuttably presumptive joint parenting to policymakers.

Galbraith, N., Kingsbury, M. (2022). Parental Separation or Divorce, Shared Parenting Time Arrangements, and Child Well-Being: New Findings for Canada. Canadian Studies in Population, 49, 75–108. https://doi.org/10.1007/s42650-022-00068-0

See…..Following parental breakup, the relative odds of having mental health or functional difficulties were highest among children who had irregular contact with the other parent.

[9]         See for instance: O’Hara, K. L., Sandler, I. N., Wolchik, S. A., Tein, J.-Y., & Rhodes, C. A. (2019). Parenting time, parenting quality, interparental conflict, and mental health problems of children in high-conflict divorce. Journal of Family Psychology, 33(6), 690–703. https://doi.org/10.1037/fam0000556

Analyses show that although more parenting time is associated with better father–child relationships, there is a point beyond which more time is not related to a better relationship.

[10]         Beck, C. J. A., Anderson, E. R., O’Hara, K. L., & Benjamin, G. A. H. (2013). Patterns of intimate partner violence in a large, epidemiological sample of divorcing couples. Journal of Family Psychology, 27(5), 743–753. https://doi.org/10.1037/

Khaw, L., Bermea, A. M., Hardesty, J. L., Saunders, D., & Whittaker, A. M. (2021). “The system had choked me too”: Abused mothers’ perceptions of the custody determination process that resulted in negative custody outcomes. Journal of Interpersonal Violence, 36(9-10), 4310–4334. https://doi.org/10.1177/0886260518791226

Tomlinson, C. S., Jiang, L. J., & Holtzworth-Munroe, A. (2022). Intimate partner violence and family law: Focus on separating and divorcing parents. In R. Geffner, J. W. White, L. K. Hamberger, A. Rosenbaum, V. Vaughan-Eden, & V. I. Vieth (Eds.), Handbook of interpersonal violence and abuse across the lifespan: A project of the National Partnership to End Interpersonal Violence Across the Lifespan (NPEIV) (pp. 3043–3069). Springer Nature Switzerland AG. https://doi.org/10.1007/978-3-319-89999-2_144

[11]         Deutsch, R. M., & Clyman, J. (2016). Impact of mental illness on parenting capacity in a child custody matter. Family Court Review, 54(1), 29–38. https://doi.org/10.1111/fcre.12201

Strohschein, L. (2007). Challenging the presumption of diminished capacity to parent: Does divorce really change parenting practices? Family Relations: An Interdisciplinary Journal of Applied Family Studies, 56(4), 358–368. https://doi.org/10.1111/j.1741-3729.2007.00465.x

[12]         Jennings, S. (2005). Autism in children and parents: Unique considerations for family court professionals. Family Court Review, 43(4), 582–595. https://doi.org/10.1111/j.1744-1617.2005.00057.x

Lahaie, E., Poitras, K., & Birnbaum, R. (2023). Judicial decision‐making in family court involving children with autism spectrum disorder. Family Court Review, 61(4), 854–869. https://doi.org/10.1111/fcre.12759

Pickar, D. B., & Kaufman, R. L. (2015). Parenting plans for special needs children: Applying a risk‐assessment model. Family Court Review, 53(1), 113–133. https://doi.org/10.1111/fcre.12134

Rappaport, S. R., Kanter, C., & Anast, K. (2016). Special considerations in child custody evaluations for children with high‐functioning autism spectrum disorder. Family Court Review, 54(1), 81–95. https://doi.org/10.1111/fcre.12206

[13]         Family Law Rule of Procedure 12.360 Evaluation of Persons (“A party may request any other party to submit to, or to produce a person in that other party’s custody or legal control for, examination by a qualified expert when the condition that is the subject of the requested examination is in controversy. Examinations may include, but are not limited to, examinations involving physical or mental condition, employability or vocational testing, genetic testing, or any other type of examination related to a matter in controversy.“) , or

Family Law Rule of Procedure 12.363 Evaluation of Minor Child (“…The court, on motion of any party or the court’s own motion, may appoint an expert for an examination, evaluation, testing, or interview of any minor child”).

[14]         See above:

As we have come to find out over the years relating to equitable distribution, although equal division of marital assets is not a presumption, only a good “starting place,” the courts are very reticent about doing anything other than dividing those assets equally.

Is this what children will have to suffer through going forward, where there is little hope of anything other than placing them a deficient parent for half the time?

[15]         F.S. 61.122 Parenting plan recommendation; presumption of psychologist’s good faith; prerequisite to parent’s filing suit; award of fees, costs, reimbursement.—

(1) A psychologist who has been appointed by the court to develop a parenting plan recommendation in a dissolution of marriage, a case of domestic violence, or a paternity matter involving the relationship of a child and a parent, including time-sharing of children, is presumed to be acting in good faith if the psychologist’s recommendation has been reached under standards that a reasonable psychologist would use to develop a parenting plan recommendation.

[16]           Association of Family and Conciliation Courts. (2022). Guidelines for parenting plan evaluations in family law cases. Retrieved from: https://www.afccnet.org/Portals/0/Committees/2022%20Parenting%20Plan%20Guidelines.pdf?ver=pL0FdZapJmsbfUvQ6zzN-A%3D%3D

SEE Communication Between Evaluators, Parties, Attorneys, and Courts

4.1 Appointment Orders and Agreements

(b) The appointment order should designate the name of the evaluator as the court’s neutral expert. It should define the court’s expectations and the obligations of the evaluator, parties, and attorneys, including the purpose and scope of the evaluation, and use of the evaluator’s report, records, and testimony.(Emphasis added).