When Can a Child Choose Which Parent to Live With in Florida?
Parents involved in a Florida divorce or paternity case often ask whether their child can choose which parent to live with. This question usually arises when a child expresses a strong preference for one parent or resists time-sharing with the other. While the concern is understandable, Florida law does not permit a minor child to decide custody. In fact, Florida no longer uses the term “custody” at all. Courts instead determine parental responsibilities and time-sharing under a parenting plan based on what arrangement serves the child’s best interests.
Effective July 1, 2023, Florida law includes a rebuttable presumption that equal time-sharing is in the best interests of a minor child. This marked a significant change from prior law, which expressly stated that no presumption existed in favor of any particular time-sharing schedule. Under the current statute, courts now begin from the assumption that a child should spend roughly equal time with both parents. This presumption applies in divorce, paternity, and certain modification cases filed after July 1, 2023.
A rebuttable presumption does not mean that equal time-sharing is automatic in every case. Rather, it means that a parent seeking something other than equal time-sharing bears the burden of proving, by a preponderance of the evidence, that equal time-sharing would not be in the child’s best interests. Courts must still conduct a full best-interests analysis and consider the specific circumstances of the family before approving a parenting plan.
Time-sharing decisions in Florida are governed by section 61.13 of the Florida Statutes, which requires courts to evaluate all factors affecting the welfare and interests of the particular child and the circumstances of the family. Judges do not decide parenting plans based on time percentages alone. Instead, they consider a broad range of factors, including each parent’s ability to meet the child’s developmental needs, provide stability and continuity, foster a positive relationship with the other parent, and place the child’s interests ahead of their own.
One of the factors courts may consider is the child’s preference, but only under limited conditions. Florida law permits consideration of the reasonable preference of the child if the court determines that the child is of sufficient intelligence, understanding, and experience to express a meaningful preference. The statute does not set a specific age at which a child’s preference becomes relevant. Instead, courts make this determination on a case-by-case basis, evaluating maturity, reasoning ability, emotional development, and the context in which the preference is expressed.
Even when a court determines that a child’s preference may be considered, that preference is never controlling. Judges are cautious about placing children in the position of choosing between parents and are mindful of the risk that a child’s views may be influenced by parental pressure, loyalty conflicts, or short-term considerations. A child’s stated preference is weighed alongside all other statutory factors and must be evaluated in light of the equal time-sharing presumption now in place.
As a practical matter, a child’s preference alone is rarely sufficient to overcome the presumption of equal time-sharing. Courts focus far more heavily on evidence relating to parenting capacity, consistency, cooperation, and the child’s long-term well-being. Attempts to pressure a child to take sides or to involve a child directly in litigation decisions can be harmful and may ultimately undermine a parent’s position before the court.
Parents facing time-sharing disputes should understand that Florida courts make parenting decisions based on evidence and statutory requirements, not on a child’s wishes alone. Parenting plans are crafted to promote stability, continuity, and healthy relationships with both parents whenever possible.
If you have questions about parenting plans, time-sharing, or whether a child’s preference may be relevant in your Florida family law case, it is important to obtain advice tailored to your specific circumstances and filing date. An experienced Tampa family law attorney at The Law Office of Laura A. Olson, P.A. can evaluate your situation, explain how the current law applies, and help you develop a strategy that protects your child’s best interests while complying with Florida’s statutory framework.
Sources:
Florida Statutes, § 61.13 (Parental responsibility; parenting plans; time-sharing; best-interest factors):
leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0061/Sections/0061.13.html
