The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Children, Families, and Elder Affairs
BILL: CS/SB 1292
INTRODUCER: Committee on Children, Families, and Elder Affairs and Senator Jones
SUBJECT: Parenting Plans
DATE: March 29, 2023
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Tuzynski Cox CF Fav/CS
2. JU
3. RC
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 1292 creates a rebuttable presumption that equal time-sharing with minor children is in
the best interests of a child, and provides that a parent moving to a residence within 50 miles of
the primary residence of a child is a substantial change in circumstances.
The bill also provides that to rebut the presumption, the party in opposition to equal time-sharing
must prove by competent and substantial evidence that equal time-sharing is not in the best
interests of the minor child who is common to the parties.
The bill will likely not have a fiscal impact on the private sector or government. See Section V.
Fiscal Impact Statement.
The bill is effective July 1, 2023.
II. Present Situation:
Timesharing with Minor Children
In general terms, ch. 61, F.S., contains the statutes that govern the dissolution of marriage, the
distribution of assets and liabilities arising from the marriage, and the parents’ responsibilities to
support and care for their children, whether the parents are married or unmarried.
REVISED: BILL: CS/SB 1292 Page 2
Section 61.13, F.S., establishes a court’s authority to order payments for child support and to
approve, grant, or modify a parenting plan.
1
When making a decision in these areas, the guiding
principle a court must follow is the “best interests of the child” standard. Additionally, the public
policy of the state is that each child have frequent and continuing contact with both parents
unless the court finds that shared parental responsibility would be detrimental to the child.
Shared parental responsibility refers to the authority of both parents, regardless of the time-
sharing schedule, to make decisions for the child in matters such as education and health care.
2
Timesharing - In General
The public policy of the state is for each minor child to have “frequent and continuing contact
with both parents.”
3
Additionally, a court must order shared parental responsibility for a minor
child unless the court finds that shared responsibility would be detrimental to the child.
4
In
setting a time-sharing award, there is no presumption for or against the father or mother of the
child or for or against any specific time-sharing schedule when creating or modifying the
parenting plan of the child.
5
In determining time-sharing with each parent, a court must consider
the best interests of the child based on statutory factors, namely:
The demonstrated capacity of each parent to have a close and continuing parent-child
relationship, honor the time-sharing schedule, and be reasonable when changes are required.
The demonstrated capacity and disposition of each parent to determine, consider, and act
upon the needs of the child, including developmental needs.
The length of time the child has lived in a stable, satisfactory environment and the
desirability of maintaining continuity.
The 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.
The moral fitness and the mental and physical health of the parents.
The reasonable preference of the child, if the child is of sufficient intelligence,
understanding, and experience to express a preference.
The demonstrated capacity and disposition of each parent to provide a consistent routine for
the child, such as discipline, and daily schedules for homework, meals, and bedtime, and to
be involved in the child’s school and extracurricular activities.
The demonstrated capacity of each parent to keep the other parent informed about the minor
child, and the willingness of each parent to adopt a unified front on major issues.
Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child
neglect, or that either parent has knowingly provided false information about these issues. If
the court accepts evidence of prior or pending actions on these issues, the court must
acknowledge in writing that the evidence was considered in evaluating best interests.
1
A parenting plan is the document that is created “to govern the relationship between the parents relating to the decisions that
must be made regarding the minor child and must contain a time-sharing schedule for the parents and child.”
Section 61.046(14) F.S.
2
See s. 61.13(2)(c)3., F.S.
3
Section 61.13(2)(c)1., F.S.
4
Section 61.13 (2)(c)2., F.S.
5
Section 61.13(2)(c)1., F.S. BILL: CS/SB 1292 Page 3
The particular parenting tasks customarily performed by each parent and the division of
parental responsibilities before and during litigation, including the extent to which parenting
responsibilities were undertaken by third parties.
The demonstrated capacity and disposition of each parent to maintain an environment for the
child which is free from substance abuse.
6
A final factor provides the court with flexibility to consider any other factor relevant in
establishing a parenting plan, including a time-sharing schedule.
7
Modification of a Timesharing Award
Times change and circumstances change. Just like alimony, timesharing with a minor child is
subject to future modification by the court. Either party to a final judgment of dissolution or final
order regarding timesharing and child support may seek modification of the timesharing or child
support award on the grounds of a substantial change in circumstances.
8
The party seeking
modification of a timesharing order must allege, and the trial 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.
9
The court may modify support retroactively to the date of the filing of the motion.
10
Unlike
alimony, timesharing is always modifiable while the child is a minor and the parties may not
enter into an agreement that prohibits modification in the future.
Studies on Equal Time-sharing
A paper reviewing 40 studies on equal time-sharing found in part that:
While acknowledging that some studies were more methodologically sophisticated and used
more valid and reliable measures than the others, the fact remains that the 40 studies reached
similar conclusions. First, shared parenting was linked to better outcomes for children of all
ages across a wide range of emotional, behavioral, and physical health measures. Second,
there was not any convincing evidence that overnighting or shared parenting was linked to
negative outcomes for infants or toddlers.
11
Relocation of Children with Parents
Section 61.13001, F.S., details the judicial process for parent relocation with a child in a
dissolution of marriage and for the purposes of time-sharing agreements. The law defines
“relocation” to mean a change in the location of the principal residence of a parent or other
6
Section 61.13(3), F.S.
7
Section 61.13(3)(t), F.S.
8
Section 61.14(1)(a), F.S.
9
Korkmaz v. Korkmaz, 200 So. 3d 263, 265 (Fla. Dist. Ct. App. 2016)
10
Section 61.14(1)(a), F.S.
11
Neilson, Shared Physical Custody: Summary of 40 Studies on Outcomes for Children, Journal of Divorce & Remarriage,
55:613–635, 2014 BILL: CS/SB 1292 Page 4
person from his or her principle place of residence at the time of the last order establishing or
modifying time-sharing. The change of location must be at least 50 miles from the residence and
for at least 60 consecutive days, not including absence for the purpose of vacation, education, or
the provision of health care for the child.
12
Presumptions
A presumption in a legal proceeding is an assumption of the existence of a fact that is in reality
unproven by direct evidence. A presumption is derived from another fact or group of facts that
has been proven in the action. If a presumption is recognized, the presumed fact must be found to
be present if the trier of fact finds that the underlying facts which give rise to the presumption
exist. Presumptions usually assist in managing circumstances in which direct proof is rendered
difficult. Presumptions arising out of considerations of fairness, public policy, and probability, as
well as judicial economy, are also useful devices for allocating the burden of proof.
13
There are
two types of presumption applicable to civil actions -- a presumption affecting the burden of
producing evidence and a presumption affecting the burden of proof.
14
Presumptions that are recognized primarily to facilitate the determination of an action, rather
than to implement public policy, are presumptions affecting the burden of producing evidence.
These so-called bursting bubble presumptions are recognized when the underlying facts are
proved to exist and they remain in effect until credible evidence is introduced to disprove the
presumed fact. Once the evidence of the nonexistence of the presumed fact is offered, the
presumption disappears.
15
Any presumption not falling within the category of presumptions affecting the burden of
producing evidence is a presumption affecting the burden of proof.
16
These presumptions are
recognized because they express a policy that society deems desirable. When proof is introduced
of the basic facts giving rise to a presumption affecting the burden of proof, the presumption
operates to shift the burden of persuasion regarding the presumed fact to the opposing party.
17
Florida law is silent as to a rebuttable presumption for equal time-sharing absent of these
enumerated factors.
III. Effect of Proposed Changes:
Timesharing with Minor Children
The bill creates a rebuttable presumption that equal time-sharing between the parents is in the
best interest of a child common to the parties. The parties may waive the presumption and agree
on a different timesharing agreement.
12
See generally s. 61.13001, F.S.
13
Presumptions—Generally, 1 Fla. Prac., Evidence s. 301.1 (2020 ed.).
14
Section 90.302, F.S.
15
Types of presumptions which affect the burden of producing evidence, 1 Fla. Prac., Evidence s. 303.1 (2020 ed.).
16
Section 90.304, F.S.
17
Types of presumptions which affect the burden of proof, 1 Fla. Prac., Evidence § 304.1 (2020 ed.). BILL: CS/SB 1292 Page 5
The bill provides that to rebut the presumption, the party in opposition to equal time-sharing
must prove by competent and substantial evidence that equal time-sharing is not in the best
interests of the minor child who is common to the parties. As stated above, current s. 61.13(3),
F.S., requires the court to consider the enumerated factors when determining the best interest of
the child for, in part, time-sharing schedules. Therefore, to rebut the presumption provided for in
the bill, the court will take evidence related to such factors to determine the best interest.
The bill also provides that a parent’s permanent relocation to a residence within 50 miles of the
primary residence of the child is a substantial, material, and unanticipated change in
circumstances.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
The bill does not require counties or municipalities to spend funds or limit their authority
to raise revenue or receive state-shared revenues as specified in article VII, section 18 of
the Florida Constitution.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None identified.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
The bill may have an indeterminate positive impact on persons who are seeking for
timesharing with a child or seeking to relocate by making timesharing orders more
predictable thereby reducing litigation costs. BILL: CS/SB 1292 Page 6
C. Government Sector Impact:
The bill may have an indeterminate positive impact on the courts by making timesharing
orders more predictable thereby reducing workload and hearing litigation costs.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends section 61.13 of the Florida Statutes:
IX. Additional Information:
A. Committee Substitute – Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Children, Families, and Elder Affairs on March 27, 2023:
The Committee Substitute adds language to indicate how a party would rebut the
presumption of equal timesharing.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.