How Tampa Fathers Can Establish Custody of Their Children
Establishing your Child Custody in Tampa, Florida
By Thor Hartwig, a Child Custody Attorney in Tampa, Florida
Over Christmas break, I received a lot of calls from men in the Tampa area that wanted to see their children for the holidays. The problem for many of them was this: They had their children out of wedlock and hadn’t established their legal paternity or custody in court.
Most men that have children with their girlfriends do not understand this. They think that because their name is on the birth certificate that they are allowed to exercise timesharing and custody of their children.
Unfortunately, this isn’t the case.
And this usually doesn’t come to light until the mom and dad breakup. Usually, the mother will allow the father to see the children because they know it’s in the children's best interest.
But sometimes women will keep the children away from their fathers out of spite, or other such reasons, even when there is not a good reason to do so. This can be a difficult thing for many men to learn, especially over the holidays.
That is why it is imperative that Tampa Bay men that have children out of wedlock establish their legal paternity as soon as the child is born. There are affidavits of paternity that the mother and father can sign at the child’s birth that will establish the father’s legal paternity.
This is separate than the birth certificate.
However, this is not enough by itself to establish a father’s custody over his children, in the event he separates from the mom. In Tampa, to establish legal custody, or timesharing, the father needs to do this by a court order.
The quickest way to do this is by agreement. The mother and father can sit down together and come up with a parenting plan, with timesharing language. They both sign it and then file the proper petition in court and have it incorporated into a final judgment.
This can be done with or without the help of an attorney. Obviously, this usually doesn’t happen while the mother and father are together, but it can be done once they split, so long as they both are mature and reasonable about raising their children in the best possible way.
Establishing legal custody is the best way to ensure that fathers have the right to see his children on a regular basis.
There is not question that raising children in a nuclear home is the best option, but the next best thing to this is with both parents actively involved in the children's lives.
Despite this fact, which should be common sense, many women are reluctant to give the father any legal custody of their mutual children. Sometimes there are genuine reasons, such as the father not being a fit parent, but more often, it is simply a matter of control and unreasonableness.
Many women know that if they have all of the “overnights” (metric used to measure legal custody in Tampa and Florida) then they will be entitled to significantly more child support. If they give up those precious overnights to the father, then that is less money “they” are owed.
So it makes sense that some women are reluctant to give fathers legal custody of their children, by agreement, as there is an economic impact on them for doing so.
This is why it is usually always the case that fathers have to establish their legal custody through an adversarial process. This usually starts with hiring or consulting an attorney.
Then, the father will have to file a petition to establish his paternity and create a parenting plan with timesharing language. The parenting plan addresses a wide-array of things, but the two big takeaways are the parental responsibility and the timesharing schedule of the children.
Parental responsibility addresses the day-to-day decision-making that parents must make in regard to raising their children. This includes decisions regarding medical, religious and educational issues.
Unless one parent is unfit, it is usually determined for there to be shared responsibility between the parents.
Then there is the timesharing schedule, or the child custody. This determines where and when the children will live, and with which parent. Historically, women usually received a much larger share of the custody over the children.
This was referred to as the “Tender Years Doctrine” which basically held that mothers were the best choice for raising the children up to around age seven, and therefore, they were given the vast majority of the custody of the children.
This is what gave rise to the ubiquity of the “every other weekend” fathers. We all know one or two.
Luckily, there has been a general trend away from this across the United States, and in the Florida Family Court system, there is a more comprehensive approach when determining child custody, or timesharing.
There are a series of statutory factors that the court will use to determine the timesharing between the parents, and the aim of these factors is to determine “the best interest of the child.”
That is the magic phrase when determining child custody, or timesharing, for the first time. The factors include such things as:
child's school and home history;
Parents' mental/physical/moral status
Permanence of the proposed home of each parent;
Continuity of the child's living situation
Parent's ability to provide for the child
Love, affection and existing ties between child and each parent
History of Domestic violence
Whether each parent will encourage contact with the other parent
Whether the parent will be reasonable in accommodating any changes that need to be made
Whether each parent will follow the court order
The involvement of each parent with the child's life
Each parent’s ability to meet the child's developmental needs
How parental responsibilities will be divided up, including how much of the parental responsibilities will be performed by a 3rd party, such as daycare or a nanny.
There is also the “catch-all” factor, which is anything else that is relevant to the best interest of the child.
Once the petition is filed, mediation is required. This is the opportunity for each parent to sit down with a neutral mediator and try and figure out a solution. In Tampa, there are cheap family law mediators that can help achieve this, although a private family law mediator is probably more effective at getting a completed parenting plan by agreement.
If the parents cannot establish or agree on a child custody plan, then the next step would probably be setting a final hearing, or trial.
If the only thing that is at issue is the parenting plan and child custody, then a half day or full day trial is probably all that is needed. This can be much longer if there are serious allegations by one or both parent, but if there is just a general disagreement on the child custody, then it will usually be under a one-day trial.
During this time, child support is usually also determined and calculated. Child support is pretty much formulaic and the major inputs are: amount each parent earns, number of overnights each parent gets from the child custody determination, amount each parent pays towards child’s medical insurance and daycare costs. Then the child support amount is calculated and there isn’t much deviation off that number.
In Tampa and Hillsborough county as a whole, there has been a positive trend in the family courts trying to give each parent 50% of the overnights, or child custody.
Of course, this depends on the above-mentioned factors, but if both parents are determined to be fit and capable, and the child’s needs would be met by both parents, then it is not unusual for a court to order 50-50 custody.
This is a definite victory for Tampa fathers that are establishing their child custody.
And while there may be an initial, upfront cost when establishing their child custody, the payoff is usually there, especially in the long run.
As mentioned before, child support is based largely on the amount of overnights each parent has. Through no affirmative steps of their own, mothers that have children out of wedlock enjoy 100% of the legal custody.
This gives them the advantage when it comes to calculating child support, as they will always get more when enjoying 100% of the child custody. But once a father establishes his legal custody, then the amount would most likely drop significantly.
This could mean the difference of several thousand dollars per year, and depending on how long the child has until being emancipated, could be a very expensive child support obligation for fathers.
So in most cases, the cost that a Tampa father would spend in order to establish his legal custody is usually paid for, sometimes multiple times over, in the long run.
Not that the economic interest should be the main concern of any father when establishing his legal custody. Obviously, the main benefit is the enjoyment of being a father, but the up-front cost of establishing legal custody can definitely dissuade some fathers from starting the custody process, and understanding the long-term economic gains may help them overcome the initial economic burden.
