Time-sharing (a.k.a. “child custody” and “visitation”) issues are often the most emotionally charged issues in a family law case. Consequently, time-sharing is usually a difficult issue to litigate.
Approach to Child Custody & Time-Sharing
My approach to time-sharing disputes is to first attempt to seek common ground with the opposing party prior to resorting to litigation. Mediated or agreed upon time-sharing parenting plans tend to work better for both the parties and the children. People usually find it easier to adhere to an agreement than a time-sharing schedule imposed by judges.
Courts are moving toward more equitable time-sharing arrangements and increasingly moving away from the old standard every other weekend time-sharing arrangement for the non-majority time-sharing parent. Of course, every judge is different, but with the general trend towards more equitable time-sharing arrangements, it is important to evaluate the stress and costs of litigating a time-sharing dispute against the likelihood of success. I have recently seen this play out in court when opposing parties take unreasonable positions related to time-sharing, demanding a 20/80 percent split of the overnights with the child(ren). At trial judges educate the unreasonable parties, stressing the importance of involvement of both parents followed by an award of 40/60 percent and 50/50 percent overnight time-sharing splits.
Ironically, many of the “bulldog” attorneys (i.e., those who are aggressive or advertise themselves as aggressive) and take unreasonable positions in litigation are not that effective in court. Why? In family law, the person who makes rulings is an experienced judge — not a jury. In most cases, judges have seen it all. Judges typically have thousands of cases on their docket. They know the benefits of being reasonable and the harm that unreasonable litigation can do to families, both emotionally and financially.
There are times when it is necessary to take a time-sharing dispute to trial due to the opposing party being unreasonable or if one parent poses a risk to the parties’ child(ren). In time-sharing litigation, hard work, experience, preparation and thoughtfulness are key. I take several cases per year to trial, and attended the 2015 Florida Bar Family Law Section Trial Advocacy Workshop to maintain my courtroom skills.
When going to trial is necessary, I work with clients to develop a holistic litigation strategy. Preparation starts the day I am retained, even if we are concurrently seeking an amicable resolution. We work together to identify evidence, develop timelines, determine which witnesses are necessary for trial, and whether it is wise to employ a social investigator.
Once evidence has been gathered and a trial date has been set, the next step is to organize the evidence to effectively tell the client’s story and advocate for the best interest of the child(ren). Trial, in most cases, is the first time the judge learns the facts of the case. Presenting the case in a logical, lucid fashion helps the judge digest the facts of case, and improves the chances of a positive outcome for the client.
With so much at stake, it is essential to have an attorney who will work with you as a partner to strive for the best possible result.
Modifying Child Custody Judgments
When a substantial change of circumstances has occurred, time-sharing and parental responsibility arrangements may be changed. In most cases, the substantial circumstances must not have been contemplated at the time the final judgment established the current time-sharing arrangement.
Examples of Changes of Circumstances:
- Job changes that substantially alter a parent’s schedule.
- Changes that may impair or impact a parent’s ability to parent (e.g., substance abuse or criminal convictions).