A few weeks ago I posted about Florida’s legislative change making timesharing a 50/50 presumption.
That post certainly generated a lot of feedback, along with an invitation to write a column for an upcoming newsletter for Kidside Miami (See: https://kidsidemiami.org ) about the likely continued need for social investigations, despite the presumption.
That invitation led my colleague Netta Shaked (See: https://sobepsychologist.com/ ) and I to write a more extensive article for submission to the Family Law Section’s Commentator.
The Kidside newsletter submission appears below (sans references).
If you would like a copy of the draft of the full article (with references) submitted for publication please send a note to me at jpoliacoff@gmail.com.
The Change in the Timesharing Presumption –
Is a Rose by Any Other Name the Same?
Did the Badge of Courage Change the Cowardly Lion?
Jerome H. Poliacoff, PhD
Netta Shaked, PhD
A Rose by Any Other Name?
Florida’s change in the statute providing for a presumption of equal time-sharing for divorcing parents leads to an oft-asked question:
Considering the change in the statute providing for a presumption of equal time-sharing do you believe there will be a decrease in the number of parenting plan evaluations and social investigations?
The 50/50 Presumption Rationale
The guiding principle for implementing the fifty-fifty presumption was, presumably, to simplify the public policy of “... frequent and continuing access...” as previously articulated in the statute when there was no presumption “...for or against any specific time-sharing schedule” in favor of either parent or for a particular timesharing arrangement to now asserting a ”rebuttable presumption that equal time-sharing of a minor child is in the best interests of the minor child”.
The rationale and motivation for the change may also have come, hopefully, from the evolving perspectives and social science research on parenting and the significant and meaningful role that both parents play in a child's life post-divorce or separation.
Not All Time-Sharing Needs to be Equal:
Real-World Exceptions to the Presumption
That same research emphasizes the quality of the time a parent spends with their child(ren) as being a salient factor in child development, not the absolute quantity of time that a parent spends with his/her child(ren).
The newly legislated presumption of equal access may not hold in the face of the pragmatics of modern family life - the court must still consider the everyday, real-world, cases which may not make a 50/50 arrangement viable with two households where, for instance, the parents' respective living arrangements, proximity to each other’s residences, place of employment, and/or to the or a child’s special needs warrant an unequal schedule.
Elephants Don’t Marry Giraffes:
Litigants Will Still Litigate
No mater the legislative intent the family court system remains adversarial. Parents were fighting for more than equal “timesharing” before the new presumption, and they will continue to do so after.
The new presumption does not obviate the presence in family court of the all too frequently seen high-conflict families and their high-conflict divorces nor does the presumption recognize the possibility that a source for the high conflict may be one (or both) parent’s lack of adequate parenting capacity to meet a particular child’s needs or to cope with the immediate stressor of high conflict litigation.
What is the Alternative to a Social Investigation
The number of cases for which there is a need for a psychological evaluation, parenting coordinator, or guardian ad litem will not change because the law changes.
In cases where there has been intimate partner violence, where one spouse has a mental health or substance abuse history, or where a child has special needs that one parent refuses to recognize, a full-scale social investigation may not necessarily be called for as there are family law rules already in place for the evaluation of each of the foregoing categories.
The Need for a Comprehensive Court Order
The court and family law attorneys will still need a comprehensive order of appointment that clearly articulates the concerns that a psychologist evaluator is being asked to evaluate - the use of a generic, jurisdiction-specific form-order, with it’s checkboxes and limited lines for handwritten notes, should not be used, as these orders do not meet the evaluator’s needs for traveling under a comprehensive order.
With a clearly articulated order in hand, a psychologist evaluator should be able to conduct an evaluation for the court consistent with the standards, methods, and procedures of a “reasonable psychologist.”
A well-written, comprehensive order, should (for a “reasonable psychologist” attuned to risk management concerns to accept the appointment) include (a) the question(s)questions and/or concern(s)to be answered and/or addressed, (b) the specifics as to how records will be released, to whom, and under what conditions, (c) who is responsible for payment, and (d) what recourse is available should a parent seek to file a complaint against the evaluator.
SUMMARY
While the fifty-fifty presumption may influence the frequency and context in which social investigations are ordered, these investigations will continue to be an important tool for courts in cases where the child's welfare, parental fitness, or the feasibility of a 50/50 physical custody arrangement is in question.
The overarching goal remains to ensure that timesharing decisions are made in the best interests of the child, with a preference for arrangements that allow for meaningful and substantial involvement from both parents.
