This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h1301c.JDC
DATE: 4/12/2023
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 1301 Parenting and Time-Sharing of Minor Children
SPONSOR(S): Judiciary Committee, Persons-Mulicka and others
TIED BILLS: IDEN./SIM. BILLS: SB 1292
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Civil Justice Subcommittee 11 Y, 4 N Mathews Jones
2) Judiciary Committee 22 Y, 0 N, As CS Mathews Kramer
SUMMARY ANALYSIS
Florida courts have consistently ruled that a parent’s desire and right to the companionship, care, custody, and
management of his or her children is an important interest that warrants deference and, absent a powerful
countervailing interest, protection. Section 61.13, F.S., provides guidelines to assist courts in determining
matters related to parenting and timesharing of minor children in actions under ch. 61, F.S., in accordance with
the best interests of the child while balancing the rights of parents.
Current law does not provide a presumption in favor of a specific timesharing schedule. In establishing
timesharing, the court must consider the best interests of the child and evaluate all factors affecting the welfare
and interests of the child and the circumstances of the family.
In every case for modifying a parenting plan, including a timesharing schedule, the best interest of the child at
issue should be the primary consideration. Pursuant to s. 61.13(2)(c), F.S., a court may only modify a
parenting plan and timesharing schedule after a substantial, material, and unanticipated change in
circumstances has been established.
With respect to a parent’s relocation, there is no current presumption in favor of or against a request to relocate
with a child when the relocation will materially affect the current timesharing and contact with the other parent
entitled to timesharing.
CS/HB 1301 amends s. 61.13, F.S., relating to modifying a parenting plan or timesharing schedule to remove
the requirement that the alleged substantial and material change in circumstances which warrants modification
must also be unanticipated. The bill also creates a rebuttable presumption that equal timesharing is in the best
interest of the child at issue. To overcome the presumption a party must prove by a preponderance of the
evidence that equal timesharing is not in the best interests of the child.
The bill also amends s. 61.13, F.S., to create a presumption that if the parents of a child reside more than 50
miles apart and one parent relocates within 50 miles of the other parent, that move is a substantial and
material change in circumstances for which modification of timesharing may be allowed.
The bill has an effective date of July 1, 2023. STORAGE NAME: h1301c.JDC PAGE: 2
DATE: 4/12/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Rights and Responsibilities of a Parent
Florida courts have consistently ruled that a parent’s desire and right to the companionship, care,
custody, and management of his or her children is an important interest that warrants deference and,
absent a powerful countervailing interest, protection. Further, a parent has general responsibilities
owed to his or her children, including supervision, health and safety, education, care, and protection. In
Florida, parenting is broken down into two distinct components: parental responsibility (decision-
making) and timesharing (physical visitation with the child based on a parenting plan). Although the
right to integrity of the family is among one of the most fundamental rights, when parents divorce or
separate, the parents’ rights are subject to the overriding concern for the ultimate welfare or best
interests of their children.
Timesharing
Section 61.13, F.S., provides guidelines to assist courts in determining matters related to parenting
1
and timesharing
2
of minor children in actions under ch. 61, F.S., in accordance with the best interests of
the child while balancing the rights of parents. As a threshold consideration, the Legislature has
declared that:
3
It is the public policy of this state that each minor child has frequent and continuing contact
with both parents after the parents separate or the marriage of the parties is dissolved and
to encourage parents to share the rights and responsibilities, and joys, of childrearing.
There is no presumption for or against the father or mother of the child or for or against
any specific timesharing schedule when creating or modifying the parenting plan of the
child.
Accordingly, current law does not provide a presumption in favor of a specific timesharing schedule,
and the court sets a timesharing schedule when the parties are unable to agree. In establishing
timesharing, the court must consider the best interests of the child
4
and evaluate all factors affecting the
welfare and interests of the child and the circumstances of the family, including, but not limited to the:
Demonstrated capacity and disposition of each parent to facilitate and encourage a continuing
parent-child relationship, honor the timesharing schedule, and accommodate necessary
changes.
Anticipated division of parental responsibilities after the litigation, including the extent to which
parental responsibilities will be delegated to third parties.
Demonstrated capacity and disposition of each parent to determine, consider, and act upon the
needs of the child.
Length of time the child has lived in a stable environment and the desirability of maintaining
continuity.
Geographic viability of the parenting plan, with special attention paid to the needs of school-age
children and the amount of time to be spent traveling to effectuate the parenting plan.
Mental health, physical health, and moral fitness of the parents.
Home, school, and community record of the child.
Reasonable preference of the child.
1
Parenting or parental responsibility refers to the responsibility and right to make important decisions about the child’s welfare, such as
education and medical care after the parents separate.
2
Timesharing refers to the time, including overnights and holidays, which the child spends with each parent. S. 61.046(23), F.S.
3
S. 61.13(2)(c)1., F.S.
4
S. 61.13(2)(c), F.S. STORAGE NAME: h1301c.JDC PAGE: 3
DATE: 4/12/2023
Demonstrated knowledge, capacity, and disposition of each parent to be informed of the
circumstances of the minor child, including the child’s friends, teachers, and daily activities.
Demonstrated capacity and disposition of each parent to:
o Provide a consistent routine; and
o Communicate with and keep the other parent informed of issues and activities regarding
the minor child, and the willingness of each parent to adopt a unified front on all major
issues when dealing with the child.
Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child
neglect, or that either parent has ever knowingly provided false information about such matters.
Particular parenting tasks customarily performed by each parent, including the extent to which
parenting responsibilities were undertaken by third parties.
Demonstrated capacity and disposition of each parent to participate and be involved in the
child’s school and extracurricular activities.
Demonstrated capacity and disposition of each parent to maintain an environment for the child
which is free from substance abuse.
Capacity and disposition of each parent to protect the child from the ongoing litigation regarding
child custody.
Developmental stages and needs of the child and the demonstrated capacity and disposition of
each parent to meet the child’s developmental needs.
Parenting Plan
A court may prescribe a “parenting plan”
5
by which the parents are ordered to share decision-making
and physical custody of the minor child. The parenting plan may order parents to exercise shared
parental responsibility, it may delegate decision-making authority over specific matters to one parent, or
it may grant a parent sole parental responsibility over the minor child. Common issues concerning a
minor child may include education, healthcare, and social or emotional wellbeing.
A parenting plan is a document created to govern the relationship between parents relating to decisions
that must be made regarding the minor child at issue.
6
A parenting plan must contain a timesharing
schedule for the parents and the child.
7
The parenting plan should attempt to address all issues
concerning the minor child, including, but not limited to, the child’s education, health care, and physical,
social, and emotional well-being.
8
In creating the parenting, plan the court must consider all
circumstances between the parents, including their historic relationship, domestic violence, and other
factors.
9
A parenting plan is either created and agreed to by both parents and approved by the court, or
is established by the court if the parents cannot agree to a plan or the parents agree to a plan that is
not approved by the court.
10
A parenting plan may be utilized in cases involving minor children
unrelated to a dissolution of marriage or in connection to a dissolution of marriage.
Pursuant to s. 61.13(2)(b), F.S., a parenting plan approved by the court must, at a minimum:
Describe in adequate detail how the parents will share and be responsible for the daily tasks
associated with raising the minor child;
Include the timesharing schedule arrangements that specify the time that the minor child will
spend with each parent;
Designate which parent will be responsible for healthcare, school-related matters, and other
activities; and
Describe in adequate detail the methods and technologies the parents will use to communicate
with the child.
11
5
A “parenting plan” is a document created to govern the relationship between the parents relating to decisions which must be made
regarding the child and must contain a timesharing schedule for the parents and child. S. 61.046(14), F.S. If a parenting plan is agreed
to by the parties, it must be approved by the court.
6
S. 61.046(14), F.S.
7
Id.
8
Id.
9
Id.
10
Id.
11
S. 61.13(2)(b), F.S. STORAGE NAME: h1301c.JDC PAGE: 4
DATE: 4/12/2023
Given the potential for heated disputes in matters involving a minor child, it is imperative that the
parenting plan be as detailed as possible to eliminate ambiguity surrounding each parent’s
responsibilities and specific timesharing with the minor child. This generally includes a detailed
description of the various holidays and with which parent the child will spend each holiday,
12
the
location of the exchange from one parent’s timesharing to the other parent’s timesharing, who is
responsible for the child’s travel expenses, the times during which one parent will ensure the minor
child is available to communicate with the other parent, the delegation of specific decision-making
topics, and more.
13
To assist parties with creating a parenting plan that meets the requirements under s. 61.13, F.S., the
Florida Supreme Court has published a standardized parenting plan form, Form 12.995(a).
14
The form
attempts to cover all possible aspects of an acceptable parenting plan including which parent can enroll
the child in extra-curricular activities, the specific meaning of academic breaks and holidays, the
process by which a parent should request a temporary schedule change, the specific days the child
should be with each parent, and the specific time the exchange should occur.
Current law does not provide a presumption for or against either parent of a child or for any specific
timesharing schedule when the court is creating or modifying a parenting plan.
Modification of Timesharing or a Parenting Plan
In every case for modifying a parenting plan, including a timesharing schedule, the best interest of the
child should be the primary consideration.
15
Pursuant to s. 61.13(2)(c), F.S., a court has may only
modify a parenting plan and timesharing schedule after a substantial, material, and unanticipated
change in circumstances has been established. The requirement for a substantial change in
circumstances promotes the finality of the judicial determination of custody and reflects the general
belief that stability is good for children.
16
As such, in order to modify timesharing (commonly referred to
as custody) of a minor child, the court must find that:
Circumstances have substantially and materially changed since the original custody
determination;
The change was not reasonably contemplated by the parties; and
The child’s best interests justify changing custody.
17
Although the welfare and best interests of the child are of paramount concern, the final order
delineating parental responsibility is res judicata.
1819
The concept of res judicata promotes the finality of
the judicial determination which, in turn, infers a presumption in favor of the reasonableness of the
original decree.
20
Demonstrating that there has been a substantial change in circumstances places an extraordinary
burden on the party seeking to modify a timesharing schedule or child custody order, by design.
21
The
high burden is intended to preclude parties from continually disrupting the lives of children by initiating
12
See Mills v. Johnson, 147 So. 3d 1023 (Fla. 2d DCA 2014) in which the trial court erred by adopting a timesharing schedule that did
not address holiday timesharing given the historically contentious parenting relationship between the parties.
13
See generally Magdziak v. Sullivan, 185 So. 3d 1291 (Fla. 5th DCA 2016); see also Scudder v. Scudder, 296 So. 3d 426 (Fla. 4th
DCA 2020).
14
Florida Supreme Court Approved Family Law Form 12.995(a), Parenting Plan (Feb. 2018),
https://www.flcourts.gov/content/download/686031/file_pdf/995a.pdf (last visited Mar. 12, 2023).
15
S. 61.13(3), F.S. The best interest of the child shall be determined by evaluating all of the factors affecting the welfare and interests
of the child and the circumstances of the family provided under s. 61.13, F.S.
16
Sanchez v. Hernandez, 45 So. 3d 57 (Fla. 4th DCA 2010).
17
25A Fla. Jur. 2d Family Law s. 961.
18
Wade v. Hirschman, 903 So. 2d 928 (Fla. 2005).
19
Res judicata is a term used to describe an issue that has already been adjudicated. Black’s Law Dictionary 1336 (8th ed. 2004). Res
judicata bars a party from further pursuing a claim that has already been decided or from re-litigating a decision that has already been
reached.
20
Wade v. Hirschman, 903 So. 2d at 934.
21
Reed v. Reed, 182 So. 3d 837 (Fla. 4th DCA 2016); see generally Wade v. Hirschman. STORAGE NAME: h1301c.JDC PAGE: 5
DATE: 4/12/2023
repeated custody disputes.
22
However, the substantial change test should not serve to prohibit
legitimate review in the best interests of the child where there have been significant changes affecting
the well-being of the child, especially when the change of circumstances has occurred over a
substantial period of time.
23
As such, a court is unlikely to lightly consider the potential modification of a timesharing arrangement. It
is the court’s responsibility to look at the situation as a whole in a light that is most favorable to the well-
being of the child at issue, including considerations for stability.
There is no current presumption in favor of or against a request to relocate with a child when the
relocation will materially affect the current timesharing and contact with the other parent entitled to
timesharing.
24
In making a determination regarding a temporary or permanent relocation, a court must
consider:
The nature, quality, extent of involvement, and duration of the child's relationship with the parent
or other person proposing to relocate with the child and with the nonrelocating parent, other
persons, siblings, half-siblings, and other significant persons in the child's life;
The age and developmental stage of the child, the needs of the child, and the likely impact the
relocation will have on the child's physical, educational, and emotional development, taking into
consideration any special needs of the child;
The feasibility of preserving the relationship between the nonrelocating parent or other person
and the child through substitute arrangements that take into consideration the logistics of
contact, access, and timesharing, as well as the financial circumstances of the parties; whether
those factors are sufficient to foster a continuing meaningful relationship between the child and
the nonrelocating parent or other person; and the likelihood of compliance with the substitute
arrangements by the relocating parent or other person once he or she is out of the jurisdiction of
the court;
The child's preference, taking into consideration the age and maturity of the child;
Whether the relocation will enhance the general quality of life for both the parent or other person
seeking the relocation and the child, including, but not limited to, financial or emotional benefits
or educational opportunities;
The reasons each parent or other person is seeking or opposing the relocation;
The current employment and economic circumstances of each parent or other person and
whether the proposed relocation is necessary to improve the economic circumstances of the
parent or other person seeking relocation of the child;
That the relocation is sought in good faith and the extent to which the objecting parent has
fulfilled his or her financial obligations to the parent or other person seeking relocation, including
child support, spousal support, and marital property and marital debt obligations;
The career and other opportunities available to the objecting parent or other person if the
relocation occurs;
A history of substance abuse or domestic violence as defined in s. 741.28 or which meets the
criteria of s. 39.806(1)(d) by either parent, including a consideration of the severity of such
conduct and the failure or success of any attempts at rehabilitation; and
Any other factor affecting the best interest of the child or as set forth in s. 61.13.
25
Relocation alone is not a substantial change in circumstances sufficient to warrant such modification of
a parenting plan or timesharing schedule.
26
The party seeking to modify timesharing must still
overcome the substantial change test before a court may address the requested modification. In
custody disputes involving the relocation of a parent, courts generally conclude that the relocation does
22
Sanchez v. Hernandez, 45 So. 3d 57, 62 (Fla. 4th DCA 2010).
23
25A Fla. Jur. 2d Family Law s. 961 citing to Reed, 182 So. 3d 837.
24
S. 61.13001(7), F.S.
25
S. 61.13001(7)(a)-(k), F.S.
26
Ragle v. Ragle, 82 So. 3d 109 (Fla. 1st DCA 2011); see also Ness v. Martinez, 249 So. 3d 754 (Fla 1st DCA 2018). STORAGE NAME: h1301c.JDC PAGE: 6
DATE: 4/12/2023
not amount to a substantial change if the relocation is not a significant distance away from the child's
current location.
2728
As such, a parent’s relocation alone is not sufficient to trigger a modification of timesharing and custody
under current law.
Effect of Proposed Changes
CS/HB 1301 amends s. 61.13, F.S., to remove the requirement that a party who demonstrates the
alleged substantial and material change in circumstances which warrants modification of a parenting
plan or timesharing schedule, must also demonstrate that the change be unanticipated. The bill also
creates a rebuttable presumption that equal timesharing is in the best interest of the child at issue. As
such, a court must operate under the rebuttable presumption in favor of equal timesharing when
creating or modifying a parenting plan. In order to overcome the rebuttable presumption, a party must
prove by a preponderance of the evidence that equal timesharing is not in the best interests of the
minor child. The bill requires a court to evaluate all factors listed under s. 61.13(3) and to provide
written findings of fact for such factors.
The bill also amends s. 61.13, F.S., to create a presumption that if the parents of a child are living more
than 50 miles apart at the time of the entry of the last order establishing timesharing and a parent
moves within 50 miles of the other parent, that move may be considered a substantial and material
change in circumstances for which modification of the parenting plan or timesharing schedule may be
allowed. However, if such modification is not in the best interests of the child, the presumption does not
apply. Therefore, under the bill, a non-custodial parent who lives 60 miles away from his or her child
and permanently relocates to a residence that is only 40 miles away from the other parent triggers the
ability for a court to modify the existing parenting plan.
The bill has an effective date of July 1, 2023.
B. SECTION DIRECTORY:
Section 1: Amends s. 61.13, F.S., relating to support of children; parent and timesharing; powers of
court.
Section 2: Provides an effective date.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
27
25A Fla. Jur. 2d Family Law s. 963, citing to D.M.J. v. A.J.T., 190 So. 3d 1129 (Fla. 2d DCA 2016).
28
See Villalba v. Villalba, 316 So. 3d 366 (Fla. 4th DCA 2021) (in which a father changing his living situation from living with his parents
with no extra bedroom for children at the time of the final judgment, but subsequently moving to a location with an extra bedroom for
children, did not constitute a substantial, material, and unanticipated change in circumstances justifying a modification of child custody). STORAGE NAME: h1301c.JDC PAGE: 7
DATE: 4/12/2023
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
None.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On April 11, 2023, the Judiciary Committee adopted one amendment and reported the bill favorably as a
committee substitute. The committee substitute:
Clarified that the presumption of equal timesharing is a rebuttable presumption and provided the
method by which the presumption may be overcome.
Clarified that if the parents of a child are living more than 50 miles apart and one parent relocates to
be within 50 miles of the other parent, that move may be considered a substantial and material
change in circumstances for the purpose of a modification to a timesharing schedule.
This analysis is drafted to the committee substitute as passed by the Judiciary Committee.