Navigating HB 1301: A Guide During Divorce

Over the course of my career as an attorney specializing in representing men during divorces, I’ve always believed in the importance of staying informed about changes in the law and sharing this knowledge with my clients. Recently, a significant change has occurred in Florida’s family law landscape with the introduction of a new law, HB 1301, which directly impacts parenting and time-sharing of minor children.

This law, which went into effect on July 1, 2023, removes the requirement for an unanticipated change in circumstances to modify a parenting plan or time-sharing schedule. It creates a rebuttable presumption that equal time-sharing is in the best interests of the child, and sets the standard of evidence needed to rebut this presumption. The court is now required to evaluate certain factors and make specific written findings of fact when creating or modifying a time-sharing schedule.

Since the enactment of this law, I’ve received a multitude of questions from clients and prospective clients trying to understand the implications of HB 1301, particularly for fathers who are going through or contemplating divorce. In response to this, I’ve decided to compile and answer some of the most frequently asked questions in this blog post. My hope is that this will provide some clarity and guidance during what can often be a challenging time.

So, let’s dive into your questions and my responses to them…

1. Why wasn't this presumption assumed in the first place?

The legislature for the longest time did not want to involve itself, because the legislature makes the laws, but defers to the judiciary to enforce them. The legislature does its best not to usurp the power of interpretation and analysis from the judiciary, but if public policy becomes overwhelming and the need for redress appears necessary, then they will do something as they did here. Ultimately, the use of the word "rebuttable" maintains that deference to the judiciary for decision making an application, but the hand of the court is ultimately forced by the use of the word "presumption."

2. Will judges know about this new law in time for my court date? 

It went into effect July 1, 2023 and applies immediately for any pending case and any case filed after said date. No retroactive applicability, so if you have a judgment now that is not 50/50, the law does not help. The law does not necessarily apply to a modification filed after July 1, 2023 because deference is being given to the original judgment. Very difficult to modify judgments regardless. 

3. How will this new law affect fathers who are/will get divorced?

It gives them the power in pretrial proceedings such as mediation where it used to be a fear the father would carry that he may not get 50/50 at a trial or could get weekend dad time; however, now the power is with the father and he can, with reasonable confidence, turn down insulting time-sharing offers at mediation and feel good about a trial. From an attorney's perspective, it will force a change in the approach of attorneys who represent women. Before, they could rely on the general tendencies of a court to favor the mother, but now, they must look at their case and must have a case to rebut the presumption that now favors the father (favors in the sense that fathers can be confident in a 50/50, not favors like fathers will now be getting majority more regularly. Indeed, on that point, the rebuttable presumption is not gender specific).

4. How will this new law affect the dwelling location of the parent(s)? 

It won’t. This is strictly time-sharing. It may, practically speaking, force the parties to make decisions to live closer to each other and enroll the child in an equidistant school because the court is more often than not going to award 50/50 now. Before, mothers would move far, still within the 50-mile statutory perimeter, but far enough away that 50/50 was difficult. Because the mother has been traditionally favored by courts, the mother would rarely be forced to move back to a fair distance, and going to trial over that issue was hard because you would be going to court arguing still for 50/50 which before you may or may not have gotten, and therefore the issue of location was secondary. Fathers now can freely and confidently litigate the issue of where everyone lives and where the school location is because they can confidently seek 50/50.

5. Is there a specific time-sharing arrangement under this new law that will be favored by the court?

No, the 50/50 is codified as "equal time sharing" in the new law. That will still be left to the parties and then, if the parties can't work that out, the court. 

6. Can you define what the best interests of time sharing means as it relates to HB1301?

No not really; the factors you see at the end of the bill are the same factors that have been used to assess best interests, but now, rather than fathers having to use those factors to climb the ladder up to 50/50, the mothers will now need to use those factors to knock the fathers down a few rungs from equal time-sharing. 

7. Relative to HB1301, what would you define as a preponderance of evidence, as it relates to equal time-sharing with a child?

To prove an element by a preponderance of the evidence simply means to prove that something is more likely than not. In other words, in light of the evidence and the law, do you believe that each element of his/her [claim/counterclaim] is more likely true than not? That is the standard definition. Courts commonly wade through the factors after evidence is presented and weigh whether each factor favors the mother, father, or neither. So the court will now weigh the factors not just as to whom the factors weigh more in favor of, but additionally whether it weighs heavily enough to compel less than equal time-sharing, so an additional analysis, in my opinion, is warranted. Example of a Judge: "The evidence presented under factor B weighs more favorably to the mother, but not so heavily that this court believes a less than 50/50 schedule is warranted."

In conclusion, the enactment of Florida’s new law, HB 1301, marks a significant shift in the landscape of family law, particularly for fathers going through divorce proceedings. It’s crucial to understand that while this law creates a presumption of equal time-sharing, each case is unique and will be evaluated on its own merits by the court.

As we navigate these changes together, I want to assure you that my commitment to providing you with the most accurate and timely information remains steadfast. I hope this blog post has answered some of your questions and provided a clearer understanding of the implications of HB 1301.

Remember, this post is intended to provide general guidance and should not be taken as legal advice. If you have specific questions about your situation or if you’re seeking legal representation, please don’t hesitate to reach out to me directly.

Thank you for taking the time to read up on the new HB 1301 law. Stay informed, stay empowered, and remember, I’m here to help you navigate the complexities of divorce law.