Posted by Nydia Streets of Streets Law in Florida Child Custody
This year, the Florida Legislature overhauled laws that applied to active duty servicemembers whose timesharing with their children would be affected by deployments. Previously, Florida law allowed an active duty military member to designate a family member to exercise timesharing in the member's place while deployed. Starting July 1, 2018, Florida law expanded the rules on who is allowed to have timesharing in place of the deployed parent.
Florida law now allows a court to grant temporary visitation in place of a deployed servicemember "to a nonparent who is an adult family member of the child or an adult who is not a family member with whom the child has a close and substantial relationship." See Fla. Stat. ss. 61.739. This is a big change since Florida law otherwise generally does not recognize the rights of non-parents or non-relatives to have timesharing with children - the Florida Supreme Court previously held that a parent's constitutional right to privacy and the rearing of his/her children is paramount to the purported rights of any non-parents (including grandparents) to exercise timesharing.
Notably, this statute applies only to temporary military assignments and not permanent duty station re-assignments. A Florida appellate court recently had to interpret the meaning of temporary versus permanent military relocation in the case Overstreet v. Overstreet, 1D17-4463 (Fla. 1st DCA 2018). In that case, the father, who was originally stationed in Pensacola, Florida, was re-assigned to Guam for three years. The father designated his parents to exercise his timesharing in his place while he was in Guam, and the trial court granted this over the mother's objection.
The mother appealed, arguing the father's move to Guam was a permanent duty station change which made the statute regarding temporary substitute visitation inapplicable. She argued the father actually needed to file a petition for relocation because his change of residence was not temporary. Thus, the appellate court was tasked with interpreting the intent of the legislature behind the temporary visitation statute.
The appellate court agreed with the mother, relying on the definitions used by the military to define a permanent station change versus a temporary deployment. The court held "We find that the legislature used the term "temporarily assigned" to mean a duty assignment of up to six months away from the member's permanent duty station that provides for the member's next duty assignment, whether that be resuming duty at the former PDS, beginning duty at a new PDS, or further temporary duty." The court reasoned, "The father's interpretation does not make sense of the entire section. If "temporarily assigned" meant merely assigned for some definite period of time, the statute could allow one parent to unilaterally effect a permanent change to the timesharing plan. If the Navy issued the father orders that set the length of his stay in Guam to twenty years, the statute as the father interprets it would allow him to designate his family members to exercise his timesharing rights for his daughter's entire childhood."
Florida active duty military members should ensure they have a plan in place as it relates to their permanent or temporary location assignments. A consultation with a Florida child custody lawyer can help you put a plan in place that gives you peace-of-mind as you focus on your assignments.