Parents fighting with little girl covering her ears

Florida Best Interests Factors: Domestic Violence and Florida Child Custody

Florida courts take many factors into account when allocating time-sharing and parental responsibility, otherwise known as child custody. Perhaps one of the most significant is the presence of domestic violence or child abuse in the home. Let’s take a look at how Florida treats domestic violence and Florida child custody.

Florida Statutes 61.13(3)(m) says a court shall consider “evidence of domestic violenc,e sexual violence, child abuse, child abandonment, or child neglect, regardless of whether a prior or pending action relating to those issues has been brought. If the court accepts evidence of prior or pending actions regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect, the court must specifically acknowledge in writing that such evidence was considered when evaluating the best interests of the child.


Unlike many of the other Florida “best interests factors,” which together help to paint a picture of how a parent and child interact, the question of domestic violence stands apart.

The state of Florida, like most states, believes that it is in a child’s best interests to have a strong relationship with both parents. Because of this, Florida courts will order shared parental responsibility unless that arrangement would be detrimental to the child. Parents may think that having the other parent involved in their child’s life would be detrimental for a variety of reasons; courts rarely agree. But there are certain situations in which the court automatically assumes that shared responsibility would be detrimental to a child. A domestic violence conviction is one of these. 

If one parent presents evidence that the other one has been convicted of a felony which involved domestic violence (or a first-degree misdemeanor), the parent with the conviction sharing custody is presumed to be a detriment to the child. 

What exactly do we mean by “presumed?” Presumption is a legal concept that shifts the burden of proof. For instance, in criminal courts in this country, there is a presumption of innocence. If the prosecutor, defense attorney, accused defendant, and all witnesses went into the courtroom and didn’t say a word or present any evidence, the defendant would go free. He or she is presumed innocent unless the prosecutor proves otherwise. 

In a custody matter, a parent who has been convicted of a first-degree misdemeanor or felony domestic violence is presumed unfit. It doesn’t mean that parent cannot be granted parental responsibility. The presumption can be rebutted if the convicted parent presents sufficient evidence. If he or she does not do so, the other parent will likely be granted sole parental responsibility of the child. 

What if (as often happens) a parent has committed acts of domestic violence or child abuse, but has not been convicted, or even charged? Evidence to that effect can (and should) still be presented to the court, and it will be considered in the custody matter. However, only a conviction as described above creates the presumption of parental unfitness. 

False accusations of child abuse or domestic violence are made in some cases. The accuser may do this to damage the accused’s chances of winning custody, to damage their reputation, or simply to hurt them. Whatever the reason, false accusations of domestic violence or abuse hurt not only the people accused, but true victims whose allegations may be doubted because of someone else’s false report. 


Whether you or your child have been the victim of abuse, or whether you have been accused of abuse, you must recognize that your custody matter has become much more complicated. While it is always helpful to have an experienced Florida child custody attorney on your side, when domestic violence becomes a factor in the case, it is absolutely essential to have a skilled family lawyer.  If you are making allegations against your child’s other parent, you need an attorney who knows how to present credible evidence so that the court will take you as seriously as you deserve. If you have been accused, you need an experienced lawyer who can help preserve your parental rights and rebut any false allegations made against you. If you have questions about domestic violence and its impact on Florida parental responsibility matters, please contact Miami divorce attorney Antonio Jimenez to schedule a consultation.