USA – FLORIDA Trends and Developments Contributed by: Elisha D. Roy and Carolyn D. Ware, Sasser, Cestero & Roy
equal access and equally divide the overnights with their children. Florida sits in an interesting place with a parenting statute that requires the court to consider the best interests of the child in direct conflict with a constitutional right for parents to raise their children how they wish, free from government interference. As such, for a court to interfere with how parents function with their children is a high burden. Until the appellate courts really start dealing with equal timesharing presumption cases, it is unclear how significant that burden really will be and what it will take to deviate from the presumption. As practitioners in Florida, rebuttable presumptions are gener - ally hard to overcome in other areas, including equitable distribution, so the assumption should likely be no different with parenting. However, it should go without saying that most paternity cases, where the mother and father were never married, should arguably be treated differently, and they are not. If a child was born to a mother, unbeknownst to the father or known to the father who was not involved, and, at some later date, a paternity action is filed – should it be the presumption that equal timesharing is in the child’s best interests if that child never knew the other parent? Should there not be a period of time where the child meets and gets to know the other parent? This is a difficult premise from a litigation perspective, as the court system in Florida does not allow for the court to create a self-evolving schedule, meaning that the court cannot say “this is the schedule for X months, followed by this”, and so on, until the parties transition to an equal timesharing schedule. The Florida court system is created such that the court can only enter one schedule it deter - mines to be in the child’s best interests at that exact time. Even though it can be inferred that a one year-old will eventually develop a closer relationship with their father over a few months
or years, the Court cannot plan for what will be in the child’s best interests at that time. If a par - ent wants to change the timesharing schedule, they must prove a substantial change, and in this scenario that substantial change would be becoming better acquainted with the child, and the hope is that this will be sufficient to over - come the hurdle to modify. Another change to the 2023 version of the statute took out the pre - vious requirement that any change be unantici - pated, but it is unclear how the court will apply that change in practice. In reality, settlement and resolution of child related issues is really based upon what is best for the child, as it allows flex - ibility. In the same vein, it will be interesting to see what the court does in applying the presump - tion to modification cases. For example, an order for timesharing that predates the 2023 statute change could include that the division of time between the parents with the child is 60% to one parent and 40% to the other parent. If a sub - stantial change is found, the law says that the rebuttable equal timesharing presumption must be applied. With the removal of the unanticipat - ed circumstance for modification and the pre - sumption of equal timesharing once the change is proven, it is arguably going to be much easier for parents who agreed to and/or were awarded less than equal to make their way back to court to obtain that equal award. Is that what is the best for the children? It remains to be seen how the courts will address this. Another issue, which is somewhat controversial but definitely needs to be top of the mind aware - ness in Florida family law, has to do with same- sex couples. In 2015, the United States legalized gay marriage and, shortly thereafter, Florida end - ed its ban on homosexuals being able to adopt children. In addition, Florida has a presumption
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