In the debate over adopting new laws concerning alimony in Florida last year, part of the debate was about a provision that would set a new legal presumption for timesharing. If Gov. Scott had signed the bill into law last year, divorces in Florida would now operate with the legal presumption that children would spend equal time with each parent.
If you ask child psychologists what is best for children in divorce, most of them would say that equal time with each parent is preferable, depending upon that family’s particular circumstances. However, those same child psychologists would also say that creating a legal presumption of equal time for each parent would not be a good idea.
This month, in fact, I was involved with programs sponsored by the Florida Chapter of the Association of Family and Conciliation Courts in Miami and Jacksonville looking at this very issue. The programs presented both sides of whether there should be a legal, meaning in the Florida statutes, presumption in favor of equal timesharing. We heard from psychologists who spoke about child development and attachment theory and how important it is for children to have healthy and continuing relationships with both of their parents, in most cases. All of the psychologists spoke in favor of children spending equal time with both of their parents, if the circumstances of that particular family warranted such a schedule, but they did not believe that creating a legal presumption in favor of equal timesharing was appropriate.
The problem with creating a legal presumption is that it is hard to deviate from it when the case calls for it. In timesharing cases, a great number of factors can affect what works best for the children who split time between two households.
One of the households might be dysfunctional, to the extent that children should only spend short amounts of time in that household – or, in more extreme examples, none at all. While both households might be good, healthy settings for children, one parent might be less available for timesharing due to work schedules. It could even be as simple as one household requiring more driving to get to, and children getting less sleep as a result.
A legal presumption of equal timesharing would likely cause more litigation in the long run. In court, and even in Collaborative and mediation settings, the presence of some kind of legal “norm” makes it more challenging to come to an agreement that deviates from that norm. Look at how child support works – there is a mathematical guideline to help dictate the formula for what should be paid, and it is seldom deviated from – especially in a case that goes to court. Creating a legal presumption means that the starting point is equal timesharing, regardless of whether an equal timesharing schedule is in the best interest of the children. By having a legal presumption in favor of equal timesharing, it places the burden on the parent who does not believe that such a schedule is in the best interest of the children to prove to the court that the presumption should not apply to that family. The current law in Florida, which does not contain a presumption in favor of equal timesharing, enables the parties, and the judge, if necessary, to fashion a timesharing schedule that is truly in the children’s best interest, taking all relevant factors into consideration.
Personally, I would much prefer to have the focus be on what is in the best interest of the children, from the beginning, rather than have an automatic timesharing schedule that may be in one of the parent’s best interest, but has nothing to do with the best interests of the children.