How to File for Custody of Children Prior to Divorce in Florida

By Elizabeth Rayne, J.D.

Boy sitting on couch with aloof parents

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Florida courts have moved away from using the term "custody" and instead assign either shared or sole "parental responsibility" along with a time-sharing schedule. If you are in the process of divorcing in Florida, you do not have to wait until the divorce is finalized to ask the court to rule on parental responsibility.

Temporary Time-Sharing Plan

Once you or your spouse file a dissolution of marriage petition, either of you can file Form 12.947(a), which is a motion for a temporary time-sharing schedule. In addition to asking the court for a temporary parenting plan, you can also indicate on this form if you want the court to enter a temporary injunction prohibiting both of you from permanently removing the children from the court's jurisdiction. Furthermore, on this form, you can include requests for other temporary orders such as spousal support or temporary use of the marital home or assets.

Additional Forms

The court will only grant a temporary time-sharing schedule if you include the required forms with the motion. You must fill out a petition for temporary custody, which must indicate why it is in the best interests of the child that you have temporary custody. With your motion and petition, you must include the Uniform Child Custody Jurisdiction and Enforcement Act Affidavit, which provides information about the current and past addresses of the children -- and indicates whether or not you know of any other filings made in other states related to the custody of the children. Further, you must include a Notice of Social Security Number, which lists your children's social security numbers. You must file the motion, petition and additional forms with the clerk of the court where your dissolution petition is filed -- and then mail or hand-deliver copies of the forms to your spouse.

Temporary Parenting Plan

If you and your spouse agree on parental responsibilities and time-sharing, you may submit the Florida Family Law Form 12.995(a), which is your parenting plan. The plan should indicate whether you will have shared parental responsibility, indicating whether both parents will jointly make major decisions affecting the welfare of the children or whether both parents will make decisions together unless there's disagreement, then one parent will have the final decision-making authority on certain subjects, or if one parent will have sole parental responsibility and make major decisions alone. The plan should also include who can sign up the child for extracurricular activities, whether both of you will have access to the child's information such as school records, as well as your actual time-sharing schedule.

Hearing and Permanent Custody

If you and your spouse cannot agree on a parenting plan, it will be up to the court to determine the temporary arrangement. The court will hear evidence from both of you as to why your proposed plan is in the child's best interest. Once the court determines the temporary parental responsibilities and time-sharing schedule, this ruling will last while the divorce case is pending. However, the temporary arrangement often becomes permanent after the divorce is finalized, unless circumstances change from the time the temporary order is issued.