Posted by Nydia Streets of Streets Law in Florida Child Custody
A parent’s failure to follow a parenting plan can result in modification of a time-sharing schedule to award the non-offending parent more time-sharing. However, modification must be done under the correct circumstances and at the correct procedural juncture. This was an issue in the case Chevalier v. Emmerson, 4D20-1034 (Fla. 4th DCA July 15, 2020).
The parties obtained a final decree of divorce in Texas, after which the mother relocated to Florida with the parties’ two children. In June 2019, the Florida court domesticated the Florida final judgment and the father filed a petition for to modify the time-sharing, a motion for contempt and a motion to appoint a social investigator. A hearing was held on the motion for contempt, and the mother was found in willful contempt of the parenting plan. The father was awarded make-up time-sharing and the mother was ordered to comply with shared parental responsibility and the time-sharing schedule. The father subsequently filed other motions for contempt which were scheduled for hearing in March 2020. Hearings on his petition for modification were scheduled for June 2020.
After the mother’s attorney withdrew the month before the contempt hearing, the mother filed a motion for continuance of the March hearing which was denied. The March hearing was held without her, and the court entered an order finding her in contempt and granting the father 100% custody of the parties’ children, supervised visits for the mother, sole parental responsibility for the father and recommended several steps the mother should complete to regain time-sharing. The mother was ordered to purge her contempt by appearing in court to surrender custody of the children to the father. The mother appealed.
The appellate court reversed, holding “ The problem here is that the trial court ordered extensive and drastic changes to the Texas divorce decree after a brief contempt hearing, when the father's motion to alter timesharing was set for a two-day trial in June. As a general rule, ‘a contempt order should not be the basis for a change of custody (or extensive visitation) order.’ [internal citations omitted]. We recognize that when a parent refuses to honor the timesharing schedule in the parenting plan without proper cause, the trial court ‘[m]ay, upon the request of the parent who did not violate the time-sharing schedule, modify the parenting plan if modification is in the best interests of the child.’ § 61.13(4)(c)6., Fla. Stat. (2019). [. . .] Notwithstanding section 61.13(4)(c)6., Florida Statutes, this court has held that ‘the trial court abuses its discretion in temporarily changing custody where, as here, custody was already established by a judgment and a petition to permanently change custody is pending, unless there is a real emergency.’”
Modifying a Florida child custody order requires a showing of a substantial change in circumstances which was not contemplated at the time of entering the current custody order or parenting plan. To understand if your basis for modification meets the standard imposed by Florida law, contact a Miami child custody lawyer for a consultation.