Posted by Nydia Streets of Streets Law in Florida Child Custody

Can a guardian ad litem in a Florida child custody case determine what the parenting plan will be? Guardians ad litem play an important role in helping a court understand what issues are present between parties and the best interest of a child. But the court cannot delegate its decision-making to the guardian. This was an issue in Merlihan v. Skinner, 4D2022-2079 (Fla. 4th DCA March 13, 2024).

In this case which involved establishment of a parenting plan, a guardian ad litem was appointed. In its final judgment, the trial court adopted the guardian ad litem’s proposed parenting plan without any changes. This resulted in some inconsistencies. For example, the final judgment stated each parent would make decisions regarding the child while in their respective care, while also stating the parties had shared parental responsibility. The mother appealed the parenting plan, as well as a finding of contempt against her.

The appellate court reversed on the parenting plan and contempt. As to the parenting plan, it held the Court could not delegate its decision-making authority to a third party, even an expert. The court must use independent judgment in entering a final judgment. Regarding the contempt, the appellate court held “The trial court’s order holding the Mother in contempt does not contain the requisite finding that the Mother had the ability to comply with the time-sharing order. [internal citation omitted]. The Father argues the Mother failed to show she could not comply. However, the law is clear that the trial court must make an affirmative finding that the Mother could comply with the time-sharing order. [. . .] The trial court also did not specifically identify the language of the order which the Mother is accused of willfully violating. [internal citation omitted]. For these reasons, we also reverse and remand the contempt order and instruct the court to make appropriate findings and issue a legally sufficient order resulting from those findings.”

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