Florida Law on Morality, Adultery, Homosexuality, and Child Custody

Under Florida law, Courts are required to make all parenting decisions based on the child's best interests. The Florida legislature has set out 20 factors for courts to consider when establishing a parenting plan or making a parenting or custody determination.  See Fla. Stat. § 61.13(3).

The parenting factors address many issues, such as which parent is more willing to share time, handles more of the parenting responsibilities, acts on the interest of the child, has been caring for the child, demonstrates knowledge of the child's circumstances, provides a consistent routine, communicates with the other parent, avoids violence, and maintains a home free of substance abuse. See Fla. Stat. § 61.13(3).  These considerations are largely non-controversial.

Courts are also required to consider the "moral fitness of the parents."  See Fla. Stat. § 61.13(3)(f).  This factor is extremely subjective, and it does not frequently play a significant role in custody determinations.

For the trial court to consider a parent’s "moral fitness" in connection with establishing a parenting plan or determining parental responsibility, the conduct in question must have a “direct effect or impact” upon the minor child.  See Smith v. Smith, 39 So. 3d 458, 460 (Fla. 2d DCA 2010).  Moreover, the connection between the conduct and the harm to the child must have an evidentiary basis.  See id. (quoting Jacoby v. Jacoby, 763 So.2d 410, 413 (Fla. 2d DCA 2000)); see also Willis v. Willis, 818 So. 2d 530, 533 (Fla. 2d DCA 2002).   “A connection between the actions of the parent and the harm to the child...cannot be assumed.”  See Packard v. Packard, 697 So. 2d 1292, 1293 (Fla. 1st DCA 1997).

In cases where a parent has engaged in adultery, the other parent may argue that the court should consider the adultery when making a determination of time-sharing or parental responsibility.  When adultery is at issue, the act of adultery should not be taken into consideration in determining custody unless the trial court finds that the adultery has a direct bearing on the child’s welfare. See Smith, 39 So. 3d at 461; Dinkel v. Dinkel, 322 So. 2d 22, 24 (Fla. 1975); Willis, 818 So. 2d at 533. Marital misconduct is not necessarily an appropriate standard for determining the best interests of the child.  See Farrow v. Farrow, 263 So. 2d 588, 590 (Fla. 2d DCA 1972); McAnespie v. McAnespie, 200 So. 2d 606, 609 (Fla. 2d DCA 1967).  A parent who commits adultery may very well be better suited to parent the child.  See Willis, 818 So. 2d at 533.  “Adultery may or may not have any direct bearing on the welfare of a child of tender years.”  Id.  The mere possibility of a negative impact on the child is not sufficient.  See Willis, 818 So. 2d at 533.

Florida courts have also rejected any notion that the potential for societal disapproval for immoral behavior may be used as a justification for favoring one parent in a custody case.  See Lofton v. Sec’y. of the Dept. of Children and Family Services, 377 F.3d 1275, 1300 (Anderson, J., dissenting from the Denial of Rehearing En Banc) (citing Maradie v. Maradie, 680 So. 2d 538 (Fla. 1st DCA 1996)).

In Maradie v. Maradie, 680 So. 2d 538, 540 (Fla. 1st DCA 1996), the parties presented considerable testimony about the sexual conduct of each parent and its relation to the parent's "moral fitness" under section 61.13(3)(f), Florida Statutes.  Among other things, the former husband presented evidence that his former wife was bisexual and had been involved in lesbian relationships.  Id.  The court-appointed psychologist testified, however, that there was no evidence that the former wife's sexual orientation impaired her parenting ability or had negatively impacted the child.  Id.  Nevertheless, the trial court awarded custody of the parties' daughter to the former husband.  Id.  The trial court based its decision on the following reasoning:

The testimony reveals that Mrs. Maradie, with her homosexual lover, spend nights and sleep together in the same bed, kiss, hold hands and speak in terms of endearment in front of the child. The possibility of negative impact on the child, especially as she grows older and reaches her late pre-teen and early teen years, is considerable.  The Court does not have to have expert evidence to reach this conclusion, but can take judicial notice that a homosexual environment is not a traditional home environment, and can adversely affect a child. To say that this cannot be considered until there is actual proof that it has occurred is asking the Court to abdicate its common sense and responsible decision-making endeavors.

Maradie, 680 So. 2d at 540-41.  Florida's First District Court of Appeal explained that the trial court was permitted to consider a parent's sexual conduct in determining the parent's moral fitness under section 61.13(3)(f).  The trial court, however, was required to focus on whether the parent's behavior had a direct impact on the welfare of the child.  Id. at 541.  The trial court certainly was not permitted to take "judicial notice" of the "fact" that a homosexual environment is not traditional and can adversely affect a child.  Id.  Accordingly, the First District Court of Appeal reversed the trial court's decision to award custody to the former husband and its decision to take "judicial notice" that being raised in the presence of homosexuality can adversely affect a child.  Id.

In Ward v. Ward, 742 So. 2d 250, 254 (Fla. 1st DCA 1996), Florida's First District Court of Appeal again clarified that the sexual orientation of the custodial parent does not, by itself, justify a custody change.  In Ward, the trial court changed custody from the former wife, who was a lesbian, to the former husband, who was previously convicted of second degree murder for killing his first wife.  Id. at 252.  On appeal, Florida's First District Court of Appeal found that the trial court was not focused on the fact that the former wife was a lesbian, but rather on the best interests of the child.  Id.  The trial court concluded that the former wife was involved in a relationship that directly and adversely affected the child.  Id. at 254.  The First District Court of Appeal held that the trial court did not abuse its discretion by changing custody because the determination was without regard to the sexual orientation of that relationship.  Id.

In Packard v. Packard, 697 So. 2d 1292, 1293 (Fla. 1st DCA 1997), the trial court awarded custody to the former husband where the wife was a lesbian living with a woman who was previously involved in a menage a trois with the parties during their marriage.  Id.  Remarkably, at the time of the divorce, the former husband was living with his new girlfriend, her children, and the parties' daughters.  On appeal, the former wife argued that the trial court based its custody decision solely on her sexual orientation.  Id.  The former husband's living arrangements were also fairly viewed as "untraditional."  Id.  The former wife argued that it was therefore discriminatory for the trial court to base its custody determination on the finding that a more "traditional family environment" would be provided by the former husband.  Id.  Florida's First District Court of Appeal again explained that the trial court may consider a parent's sexual conduct in determining the parent's moral fitness under section 61.13(3)(f), Florida Statutes, but that in such consideration "the trial court should focus on whether the parent's behavior has a direct impact on the welfare of the child."  Id.  In other words, the trial court's primary consideration must be on the conduct involved and whether the conduct has had or is reasonably likely to have an adverse impact on the child, as opposed to weighing which household was more or less "traditional."  Id.  The Court of Appeal reversed the trial court's custody determination and remanded the case with instructions to follow the foregoing principles when considering the parties' moral fitness.  Id.

In Jacoby v. Jacoby, 763 So. 2d 410 (Fla. 2d DCA 2000), the former husband's case was centered largely on attacking the former wife based on her sexual orientation.  The trial court made remarks about the negative impact of the mother's  sexual orientation on the children.  Id. at 413.  The Second District Court of Appeal found that the trial court's negative comments were conclusory and unsupported by the evidence.  Id. Specifically, the trial court found that "the community" shared the former husband's belief that homosexuals are immoral and should not be entrusted to rear children.  Id.  The trial court further found that a "strong stigma" attaches to homosexuality and that while being reared in a homosexual environment does not appear to alter sexual preference, it does affect social interaction and that it is likely that the children's peers or their parents will have negative words or thoughts.  Id.  The Second District Court of Appeal, however, found that even if the trial court's comments about the community's beliefs and possible reactions were correct and supported by the evidence, "the law cannot give effect to private biases."  Id.  With respect to the custody decision, the Second District further reasoned that "even if the law were to permit consideration of the biases of others, and even if we were to accept the assumption that such would necessarily harm the children, the bias and ensuing harm would flow not from the fact that the children were living with a homosexual mother, but from the fact that she is a homosexual."  Id.  The Second District Court of Appeal held that the trial court's "reliance on perceived biases was an improper basis for a residential custody determination."  Id.  The trial court also improperly concluded that the children's exposure to the Baptist religion coupled with living with a homosexual parent would necessarily create confusion for the children.  Id. at 414.  The lower court also made a number of other leaping conclusions in support of its decision to award custody to the heterosexual father.  Id. at 414-15.  None of these jumps to conclusion were supported by the evidence, and the Second District Court of Appeal reversed the trial court's decision.  Id. at 414-15.  In short, when making its custody determination, the trial court impermissibly penalized the mother for her sexual orientation without evidence that it harmed the children.  Id. at 415.

All of these decisions by the Florida courts make clear that homosexuality alone cannot be the basis for an adverse custody decision.  The trial court must link any allegedly "immoral behavior" to a direct affect on the minor child.  That connection must be supported by evidence in the record.  The link cannot be the product of speculation or "judicial notice."  In other words, before a court can make any judgment concerning a party's homosexual or other allegedly "immoral" conduct, the court must be prepared to explain how the conduct at issue directly impacted the minor child.

If you have questions about child custody issues in Florida, please contact an experienced Florida family law attorney.

Can a Florida Court Extend Child Support Beyond Age 18?

The duty to provide support for a minor child is based upon the child's incapacity, both natural and legal, and the child's need of protection and care.  See Kern v. Kern, 360 So.2d 482, 484 (Fla. 4th DCA 1978).

Court have recognized that a parent's legal duty to support his children ordinarily ceases at the age of majority.  Perla v. Perla, 58 So. 2d 689, 690 (Fla. 1952).  A parent, however, owes a duty of support to an adult child in extraordinary circumstances, such as when the child suffers severe physical or mental incapacitation.  See Kern v. Kern, 360 So. 2d 482, 486 (Fla. 4th DCA 1978).

In 1973, the Florida legislature lowered the age of majority from 21 to 18.   See Fla. Stat. § 743.07.    More recently, the Florida child support statute was modified to require all family law judgments awarding child support to include the following provisions:

1. That the child support for each child will terminate on the child’s 18th birthday unless the court finds that section 743.07(2) applies, or is otherwise agreed to by the parties; 
2. A schedule stating the amount of the monthly child support obligation for all the minor children and the amount of child support that will be owed for any remaining children after one or more of the children are no longer entitled to support; and 
3. The date that the reduction or termination of child support becomes effective. 

See Fla. Stat. § 61.13(1)(a).

In other words, section 61.13, Florida Statutes, requires that a payor's child support obligation automatically adjusts downward as each child reaches his or her 18th birthday.

The Florida legislature has also codified when a support obligation may be extended beyond 18 years of age. Specifically, section 743.07, Florida Statutes, states that child support may be extended beyond age 18 in two situations: (a) where a child is dependent due to mental or physical incapacity that began prior to age 18; and (b) where a child has reached the age of majority, is living at home, attending high school, and reasonably expects to graduate high school before age 19.  This language was added to the statute effective October 1, 1988.  See Penton v. Penton, 564 So. 2d 1114, 1115 (Fla. 1st DCA 1990).  Courts have recognized that these two situations are separate bases to extend child support beyond age 18.  See Miller v. Smart, 636 So. 2d 836, 837 (Fla. 5th DCA 1994).

The difficult question is under what circumstances might a mental or physical incapacity justify an extension of child support?  The statutory uses the word "dependent."  Obviously, the word dependent suggests that a parent will not owe support if the child is out working and self-supporting.  The answer is less clear where a child is moderately incapacitated and living at home.  A troubling example might be a child living at home and suffering from a mild physical disability or a moderate psychological disorder.   In Kern v. Kern, 360 So. 2d 482, 486 (Fla. 4th DCA 1978), Florida Fourth District Court of Appeal held that a dependent child must suffer from a "severe physical or mental incapacity."

Decisions subsequent to Kern that discuss whether an adult child is "dependent" within the meaning of section 743.07, Florida Statutes, have not used the words "suffering" or "severe" when describing the child's mental or physical incapacity.  See, e.g., Carres v. Good-Earnest, 838 So. 2d 577 (Fla. 4th DCA 2002); Miller v. Smart, 636 So. 2d 836, 837 (Fla. 5th DCA 1994).

In Penton v. Penton, 564 So. 2d 1114 (Fla. 1st DCA 1990), the court awarded child support beyond the age of majority due to the child's mental and emotional condition.  In Penton, the parties' son was a sophomore in high school at the time of the divorce. The first district concluded that the son suffered "psychological infirmities" due to the stress stemming from the divorce and was being treated by a mental health professional. The child's emotional condition constituted a dependency, which, when coupled with his economic incapacity, was sufficient to require support beyond the age of majority.

In Pitts v. Pitts, 566 So. 2d 12, 13 (Fla. 2d DCA 1990), the parties' child suffered from learning disabilities, which required him to devote most of his time to his studies.  The court found that the child could not work to support himself while he was in school due to his learning disability.  This decision is noteworthy because the child's disability appeared relatively modest.

Regardless of whether the physical or mental incapacity is "severe," under section 743.07, Florida Statutes, the incapacity must result in the child's "dependency."  Some practitioners and judges may equate "dependency" with "disability."  And, this would be a fair analogy given that the child must suffer from an incapacity that rises to the level of dependency.  Finally, the incapacity - whatever it might be - must have rendered the child dependent prior to his or her attaining the age of majority.  Any supplemental petition to extend child support must be filed before the support obligation terminates.

Can I Get My Family's Diamond Engagement Ring Back in My Divorce?

Divorce clients often ask whether an engagement ring is considered a marital asset in subject to equitable distribution.  In the case of short-term marriages, some Husbands will even inquire whether the ring will be returned to them.  

Under Florida law, when the parties become married, the Husband no longer has any right to seek a return of the engagement ring.  Nor is the ring marital property to be included in the equitable distribution scheme.  In short, the ring is simply a premarital gift that is owned solely by the Wife.  See Melvik v. Melvik, 669 So. 2d 328 (Fla. 4th DCA 1996); Greenberg v. Greenberg, 698 So. 2d 938 (Fla. 4th DCA 1997).

Most clients accept that the law allows the Wife to keep her engagement ring.  The issue is more complex where the ring is a "family heirloom" that previously belonged to a member of the Husband's family.  

In one case, the Husband asked the Judge to order that the "heirloom" ring be returned to him.  The Court did so, ordering that the ring would be passed on to one of the parties' children.  Florida's Second District Court of Appeal reversed this "Solomonic" decision, reasoning that there is no special consideration for a ring that is a family heirloom.  See Randall v. Randall, 56 So. 3d 817, 818-819 (Fla. 2d DCA 2011).

In Randall, there was no reference to any agreement requiring the Wife to return the ring in the event of a divorce.  If the parties reached any agreement, the Husband may have a civil claim to recover the ring. 

If you have questions about your rights in a dissolution of marriage case, contact an experienced Tampa family law attorney.