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Florida Parenting Plan Disputes and Helping Parents Get a Chance to be Heard in Court

Chase_County,_Nebraska_courthouse_courtroom_1.JPGA recent ruling from the 3d District Court of Appeal reversed a trial court ruling that modified a parenting plan to which both parents had agreed in 2012. Our office, representing the mother, persuaded the appeals court that this ruling was improper because it, despite the absence of an “actual, demonstrated emergency,” altered an existing parenting plan without giving both parents the chance to be heard by the court.

The case surrounded the custody and visitation of the son of H.W. (father) and C.W. (mother). The couple divorced in the summer of 2012, when the child was four. Before the divorce was finalized that summer, they agreed to a mediated marital settlement and parenting plan. Two years later, the father returned to court, asking for a modification in that plan.

Specifically, he sought to change the parenting plan. The plan called for shared parental responsibility and a 50-50 timesharing arrangement. The father desired sole parental responsibility, with the mother receiving only limited supervised visitation with the child. Additionally, the father made an emergency request for an immediate cut-off of all contact between the mother and the child, claiming that the mother “was alienating the child from him and causing the child psychological harm.”

Subsequently, numerous administrative issues went wrong, preventing a final resolution of the dispute. Initially, with the hearing partially completed, the first trial judge had to recuse herself. The second trial judge restarted the case from the beginning. With the second hearing again only partially finished, the new judge became ill and took leave from work. The court administrators assigned the case to a third trial judge, but she made comments seemingly indicating that she had pre-judged the matter, forcing the appeals court to order her removed from the case. By this time, the second trial judge had returned from leave and resumed handling the case.

The judge granted the father’s requested emergency order, limiting the mother to temporary supervised visitation and telephone contact with the child. Under Florida law, there are only a limited number of situations in which a trial court should modify the child custody arrangements placed in a dissolution judgment. The law requires the parent seeking the change to prove that a “substantial and material change in circumstances” has taken place and that, under these changed circumstances, the modification sought would promote the child’s best interests.

In the vast majority of cases, trial courts should not make a change unless both parents have had a chance to present their evidence and arguments to the trial judge. Even in emergency temporary modification requests, the court should hear from both parents before ruling unless “there is an actual, demonstrated emergency situation.” These types of emergency scenarios include a threat of physical harm to the child or the imminent removal of the child from the state. Even if these types of emergency risks are present, the trial court should “every reasonable effort” to hear from both parents.

That is why the appeals court ruled in favor of the mother in this case. The trial judge made a ruling modifying the parenting plan, and it did so without hearing from the mother and allowing her to put on her case. Doing so “departed from the essential requirements of law.”

Nine days after releasing its initial opinion, the appeals court granted the father’s motion for clarification. In that subsequent opinion, the court explained that its previous opinion quashed the trial court order that had limited the mother to short, supervised visits and supervised telephone contact. The mother, it stated, should only be limited to supervised contact until the trial court completes its hearing, which it should do promptly. The appeals court stated that, because its intent was not to create further disruption in the child’s living situation, it was upholding the trial court’s decision to keep the child with the father, who had maintained custody of the child since December 2014.

Our office is committed to ensuring that our clients have the chance to have their “day in court” and present the best case possible. For skilled and determined representation for your parenting plan and other child custody issues, contact the South Florida child custody attorneys at Sandy T. Fox, P.A.

Contact us online or by calling (800) 596-0579 to schedule your confidential consultation.

More blog posts:

Obtaining Emergency Relief in Your Florida Timesharing Case, Fort Lauderdale Divorce Lawyer Blog, May 20, 2015
How to Obtain a Custody Modification in Florida, Fort Lauderdale Divorce Lawyer Blog, Feb. 11, 2015