Josh2.ashxIn most divorce cases there are four primary issues in contention: (a.) property division; (b.) alimony and support; (c.) child-centric issues including timesharing and support; and (d.) attorney’s fees. However, when children are involved in a divorce proceeding; the issues concerning their care often take precedence in the minds of the parties, as it should.

Over the years, there have been many changes to the statutes which governed the way in which custody and timesharing cases were decided. Until recently though, most of these changes had more to do with semantics then substance. Initially, we had custody and non-custodial parents. Several years later, the word custody was banished from the statute books in favor of primary and secondary residential parents. Alas, these words were also deemed inappropriate and the legislature adopted the terms timesharing and replaced the primary/secondary parent with the parent who had the majority/minority of access. In effect, the legislature was changing the lyrics but the meaning of the song remained fairly constant.

However, recent revisions to the timesharing statute, have gone far beyond the semantics of child rearing to make a substantial and meaningful impact on the way in which the Courts deal with this issue altogether.

Historically, timesharing was based upon the idea that the child should have one anchor home where he or she lived and one home where he or she visited on a regular basis. This was meant to provide a sense of stability to a child in an otherwise uncertain situation. In fact, prior to 2008 the legislature created a presumption that rotating custody (50/50 timesharing) was not in the best interests of the child. In order to incorporate rotating timesharing into a parenting plan, the Court had to make specific findings which established that, in that particular case, it served the child’s interests. For example, the Court would need to find that the parents lived in close proximity, communicated well and could smooth the transition in order to ensure that nothing (school work, extracurricular, etc…) fell through the cracks.

However, with recent revisions to the timesharing statute, the legislature asserted a new public policy which effectively changed the landscape in timesharing cases. It is now the public policy of the state of Florida that children should spend as much time as possible with both parents in order to forge, and maintain, a strong a lasting bond. In applying this policy, the legislature removed the presumption against rotating custody, which had previously been expressly written into the statute. As a result, while the new statute does not explicitly state that rotating custody should be granted (or even that it is in the best interest of most children; the practical import of this change, was that many Judges now believe that timesharing should be rotated on a 50/50 basis, unless there is compelling evidence that this will be harmful to the child. In other words, it now appears that there is a de facto presumption in favor of 50/50 timesharing.

Only time will tell if this new legislative scheme is ultimately in the best interests of the many children who are forced to go through the divorce process. In the meantime, from a legal, political and sociological standpoint, it is extremely interesting to note how a simple change in a statute, one which was more implicit than explicit in nature and which was passed with little public knowledge or input, can effectively change decades of precedent and policy and affect thousands of lives in a very meaningful way.