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Family Court -- or Family Cooperation?
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Family Court -- or Family Cooperation?
by Collaborative Lawyers, Inc.

It can cost many thousands of dollars to get a fairly ordinary contested divorce to trial if you have issues involving property, alimony, and children.

These days, custody litigation seems to dominate the courts. Many fathers want more time-sharing with the children than they used to. In response to this, the Florida legislature recently eliminated the terms "custody" and "visitation" from the laws, noting that one parent should not be called the "visiting" parent. (Chapter 61, Fla. Statutes.) Both parents are considered to have an equal obligation and rights concerning their children.

However, in connection with the concept of time-sharing there also was a significant change to the child support guidelines providing that when one parent spends more than 40 per cent of the overnights with the other, that parent has a significant reduction in their child support obligations. The result is when some husbands seek more time-sharing they are really seeking to pay less child support, or convince the wife to take less alimony or equitable distribution. This occurs even if he only rarely has contributed in the past to caregiving of the children or the home (other than, perhaps, financial contributions). Be this as it may, there do seem to be many husbands who are now taking a more active role in their children's lives, particularly with the number of working mothers and a younger generation where fathers are interested in maintaining a firm, continuing relationship with their children.

The benefit of collaborative law is that the parents can sit down and work out an arrangement that addresses both issues: the desire for the father (as he is still usually the major breadwinner) to maintain a close contact with his children and have the finances to meet the children's needs when he has time-sharing, as well as addressing the mother's fear that she will not have the resources to maintain a comparable life style for the children once the divorce occurs.

Twenty or thirty years ago, the scenario in family court was rather different. A mother was presumed to get custody of the child(ren) during the divorce unless there were unusual circumstance, such as substance abuse. Alimony was considered to be an economic equalizer for a wife's or mother's contributions to the child rearing, household duties, and the husband's career. Equitable distribution did not presume an equal division of property, but there was more of a focus on the dependent spouse's actual needs, as established by the marital lifestyle of the parties. Judges dealt less with the soft issues of child custody and family life, and concentrated more on the quantitative property issues and the equities of the parties' respective finances and needs.

Today, it is argued by some that when children do remain with their mother, they may experience a far declined standard of living because of the replacement of realistic spousal support awards with amounts established pursuant to the child support guidelines. In other cases, application of child support guidelines may cause inequities for payors. For example, if a father has time-sharing every other weekend from Friday to Sunday, and one night during the week one week, and two nights alternate weeks, child support is adjusted so that the father can be enabled to accomodate a second home for the children.

Thus the laws now effectively tie child support to child custody, i.e. the time sharing arrangement with the children, with the iatrogenic effect of placing many parents into a position of feeling that they have no choice but to fight for extensive time share for their own financial protection. Consequently, in some cases, the laws have exacerbated divorce litigation by turning the children into financial assets. This often leaves both parties, as well as the children, unnecessarily wounded.

Again, this is the benefit of considering collaborative law. The parties can address the issue of what is best for the children, and then discuss the financial arrangements that will allow the best time-sharing arrangement for the children within the confines of the finances of the parties.

This is quite different from the law of several decades ago, when a concept known as the "Tender Years' Doctrine" was in effect. This theory of child custody was eliminated in Florida, and in most of the rest of the country as the result of a movement toward "gender neutrality." The Tender Years' Doctrine presumed that young children would best be kept in the custody of their mother following divorce or in a paternity action. Today, the prevailing thinking reflected in the law is that both parents should equally work outside the home as well as within it.

These changes to the family laws, which many welcomed, have been dramatic, and also have had numerous unintended ill effects. Most families don't live in gender-neutral marriages in a gender-neutral world. Even when mothers work outside of the home, they usually earn less money than their husbands. This is why it is important to deal with the financial issues in conjunction with the issues of child support and time-sharing in as non-adversarial a position as possible.

The "best interests" of the child is now the "gender neutral" standard adopted by courts for cases of time-sharing. It is a lofty ideal, but unfortunately, it is not well-defined in the law or by psychology. Chapter 61 of the Florida Statutes provides a non-exclusive list of items for the judges to use in determining "best interests" of the child for custody time-sharing purposes, but do not specify what weight should be given to the factors. There is little guidance.

For couples in disagreement, the lack of guidance under the best itnerests standard means that judges can make mistakes. However, their decisions are difficult to overturn on appeal. The test set forth by the Florida Supreme Court in Canakaris v.Canakaris, 382 So. 2d 1197 (Fla. 1980) for an appellate court to overturn a judge's decision is an "abuse of discretion" standard, explained therein as

"Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court." (emphasis added)

In this regard, an appellate court will defer to the decision of the trial judge, making even a decision that neither parent likes virtually unreviewable in the appellate arena. There is no better reason to work toward cooperation in determining child support and time sharing.

Collaborative Lawyers, Inc. is an association of independent Florida Collaborative Lawyers, Collaborative Family Lawyers, and Collaborative Divorce Lawyers. Lisa Marie Macci, Esq. and Elizabeth J. Kates, Esq. contributed to this collaborative article.

Information on this website should not be taken as legal advice. Laws change, situations differ, and there may be exceptions to general rules. Except as otherwise may be provided, this website and contents are © 2009 Collaborative Lawyers, Inc. Collaborative Lawyers, Inc., is a state-wide educational and professional development association and business directory of independent Florida licensed attorneys at law and law firms who practice in the areas of collaborative divorce and collaborative family law. It is not a law firm or attorney referral organization.

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