Terms Change In Divorce Cases

When it comes to some divorces, money is no object for parents who desperately want primary custody of children.

Already bitter over the loss of a marriage, couples who once professed "till death do us part" can get tangled up in heated words like "custody" and "visitation" - words that denote power and leave one parent a winner, the other a loser.

And a child without the benefits of being raised by mom and dad.

A new state law that goes into effect Oct. 1 removes those contentious words from divorce proceedings and requires parents to craft detailed plans to care for their children together despite living apart.

"It lets them get off the idea that a child is a piece of property," said Beth Reineke, a Tampa divorce attorney and family mediator.

At least two other states require parenting plans that clearly delegate parental responsibilities like who picks up the kids after school and how health care decisions are made.

But Florida is one of the first in the nation to actually change the language within divorce proceedings with a goal of making them less litigious and, hopefully, preventing them from dragging on for years.

Custody is now called shared-parental responsibility and visitation is referred to as time-sharing. There aren't primary residential or secondary residential parents anymore.

The new law is a groundbreaking experiment of sorts, said administrative Judge Scott Stephens, who oversees domestic relations for the 13th Circuit Court in Tampa.

"We're very interested in seeing how it's going to play out," he said. "It's never been tried before."

It may seem like semantics, but changing words can help diffuse a ticking time bomb, said Elisha D. Roy, a divorce attorney in West Palm Beach.

"Most parents love their children," Roy said. "But they spend so much time and money fighting about this stuff and it's really not in the best interest of the kid."

Roy chaired the Florida Bar's Family Law Legislative Committee this past session and conducted research for the new law.

"The consensus was that many people would fight over those labels," Roy said. "We wanted to stop people from spending unnecessary time and money litigating over nonsense.

"It really just encourages better parenting, in most cases," she said. "But some parents are going to fight anyway."

Plans Spell Out Authority

The requirement for a written plan is designed to alleviate confusion among caregivers, school administrators, law enforcement and others who might struggle over who makes decisions for the child.

"You had fathers who couldn't get their names on the drop-off list at school," Reineke said. "The primary parent doesn't really have more authority, but now it's spelled out."

It serves to remind parents, too, Reineke said, that, "You're getting a divorce from each other, you're not getting divorced from your child."

But the plan also has the potential to induce contention where it didn't exist, Stephens said. It could be viewed as "micromanaging."

"If it's working fine now, we'd be a lot better off if we just stayed out of it," the judge said.

Licensed mental health counselor and marriage and family therapist Mary McGinnis said the new law is in line with an existing trend in family law. Courts and attorneys already have been disengaging from using volatile words like custody and creating in-house parenting plans, she said.

"As a system over time, it might make a difference," said McGinnis of Tampa, who also serves as a parent coordinator for high-conflict divorces. "But it takes a while for that ripple effect to happen."

For instance, when people today talk about getting custody of children, they don't say they prefer custody, McGinnis said. "They say they're fighting for custody."

The law is a good start to altering people's mindsets about divorce, she said, "but it won't fix everything."

'Conceptually, Law Sounds Great'

Ted Badger, a pastor at Bell Shoals Baptist Church in Brandon who ministers to divorced parishioners, worries that for some parents in the throes of an emotional divorce, reaching an agreement about shared parenting won't be as easy as sitting down and hashing out a plan.

"Conceptually, the law sounds great," he said.

But Badger hasn't seen too many situations in which divorces are truly amicable. "We all have baggage," he said.

Some people might find a way to manipulate the law, too, warned Greg Lewen, head of the family law practice at Fowler White Burnett in Fort Lauderdale. For instance, the parent who spends more time caring for a child would typically qualify for child support from the other parent.

But if that other parent now gets additional time with the child, he or she could pay less child support.

"So there's a huge risk of abuse," Lewen said. "Before at least we had these labels that made it clear what you would get or not get. You had custody or you didn't."

The potential benefits, however, outweigh the risk, he said.

"Where we're at right now is so Draconian in our thinking," Lewen said. "Custody and visitation are destructive words and destructive concepts. Unless there's a reason for a restriction, it takes two to raise a child."

The existing law already sets the bar high for one parent to have sole responsibility and that would continue, Stephens said. Those conditions would include having one parent in jail or convicted of a third-degree felony or higher involving domestic violence.

"Merely having a drug addiction is not enough," he said. "We have to use the same standards as the dependency court uses" when removing children from their parents' custody.

The law does allow the court some leeway to fashion conditions. If the parent had a history of drug use, for example, the judge could require testing.

Only time will tell if the new law works, Stephens said, but he supports its intent. "The Legislature has decided - and in my opinion quite rightly - that kids want to have two parents."

State Rep. James Frische, R-St. Petersburg, worked for two years to get the shared-parenting law passed. The House version of the bill died, but the Senate version was approved in May.

"I have seen firsthand what can happen in a divorce when children are involved," he said. "There's so much posturing over being called the custodial parent. There are people out there who are telling their children, 'See, your other parent is not as good. ... I have custody, you're mine.'"

Frische also was motivated by the possibility that the new law would unclog courtrooms. "The courts can focus on more important issues other than who gets to visit on what day," Frische said.