Articles Posted in Child Custody And Visitation

A Child Custody and Visitation case involving private schooling was recently decided by the Florida Court of Appeal. The father sought to enroll the children in a private Christian school. The final judgment of dissolution of marriage awarded the parents shared parental responsibility for the children. In 2017, the children attended public school at Palmetto Middle School and Palmetto Elementary School. The parents could not agree on which middle school the children should attend. The mother preferred Palmetto Middle School and the father wanted the children to attend a private Christian school. The father stated that he was willing to pay for the cost for the children to attend the private school.

The mother filed a motion for contempt of court against the father for taking one of the children to be tested to determine his eligibility to attend the private school. The father filed a motion in which he requested that court order the children to attend private school. The father alleged that the mother refused to even discuss the children’s enrollment in the private school. The father argued that the private school was in the children’s best interests and that it was a better fit for the children. The trial court ruled in favor of the father and permitted the children to attend private school. The court required the mother to cooperate with its decision and denied the mother’s motion for contempt.

Regarding Child Custody and Visitation, the Florida Court of Appeal affirmed the trial court and ruled that when the parents are awarded shared parental responsibility and are unable to reach an agreement on a decision affecting the children’s welfare, they should present the issue to a trial court for resolution. The trial court is then vested with the responsibility of making the determination as to what is in the best interests of the children. The best interests of the children are the standard that trial courts are to utilized to in making determinations concerning the welfare of the children. The Court ruled that the father had the ability to pay for the private schooling and that it was not error for the trial court to make its determination ten months prior to the date that school was going to start and three weeks prior to the deadline to apply.

A child custody and visitation issue was recently decided by the Florida Court of Appeal in a case captioned Preudhomme v. Preudhomme. In this case, the Mother challenged the trial court’s timesharing determination. The Mother lived in Pensacola and the Father lived in Mobile, Alabama. During the pendency of the divorce proceeding, the parents met midway between the two cities for timesharing. The parents arranged for the child to attend preschools in both cities. The Mother asked the trial court to create a parenting plan in which she had majority timesharing and the Father was given alternating weekends and holidays and weekly rotating custody during the summer. The Father asked the trial court to continue the current timesharing schedule until the child began kindergarten. The child was scheduled to begin kindergarten approximately twenty months later. After the child started kindergarten, the Father requested that he be awarded majority timesharing when the child was in school. The Father proposed that the Mother should have timesharing during alternating holidays and weekends, and for most of the summer. The court adopted the Father’s proposed parenting plan.

Regarding the child custody and visitation issue, the appellate court pointed out that custody decisions must be supported by competent, substantial evidence. The court went on to state that lower courts have significant discretion in deciding timesharing matters. Courts of Appeal should affirm trial courts’ decisions concerning timesharing when there is substantial and competent evidence that supports the trial courts’ decisions. However, trial courts may not engage in prospective-based analyses when they create parenting plans. Trial courts are prohibited from deciding what the best interests of children will be in the future. Custody and visitation issues must be decided based on the present best interests of children because trial courts are not equipped with “crystal balls” that permit them to predict the future. The Court of Appeal stated that when the trial court in this case ruled that it was in the child’s best interest for the parents to continue rotating timesharing on a weekly basis until the child entered kindergarten, and to then grant majority timesharing to the Father, the trial court engaged in a prohibited prospective-based analysis. The appellate court reversed the trial court and sent the case back with directions to the trial court to delete that portion of the Final Judgment that was based upon future events.

To speak with a child custody and visitation attorney in West Palm Beach , Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

In making a child custody and visitation award that provides for ultimate decision-making, a trial court must delineate the specific areas over which a parent can exercise this authority. In a recent case captioned McClure v. Beck, the former wife filed an appeal of a lower court decision which modified the parties’ final judgment. The Court of Appeal agreed with the former wife’s argument that the lower court decision should be reversed because the trial court erroneously gave the former husband ultimate decision-making authority without describing the specific areas over which he could exercise this authority. The parties’ original final judgment of dissolution of marriage gave the parents equal time ­sharing with their children. It required the parties to live in Indian River County. The former wife petitioned the Court to relocate to California. The lower court denied the former wife’s petition. Notwithstanding the Court’s ruling, the former wife remained in California. The former husband then filed a petition to modify the parties’ time-sharing schedule and asked the Court to award him ultimate decision-making authority if the parties were unable to agree. The magistrate gave the former husband ultimate decision-making authority when the parties disagreed on major decisions concerning the welfare of the children. The trial court affirmed the magistrate’s decision. The Court of Appeal reversed the magistrate’s and the trial court’s rulings.

The Court of Appeal stated that permitting one parent to have ultimate authority over specific matters where the parties cannot agree is permissible. However a final judgment must specify the particular aspects of a child’s life over which a parent may have ultimate responsibility. In this case the final judgment was reversed because it failed to delineate the specific aspects of the children’s lives over which the former husband had ultimate decision-making authority. The final judgment in this case stated that the parties should make an attempt to agree on major decisions affecting the children. Major decisions were defined as decisions about the children’s healthcare, education and other matters. If the parties were unable to agree, the Father was given ultimate decision-making authority. Since the order failed to delineate specific aspects of the children’s lives over which the former husband would have ultimate decision-making authority over, the Court of Appeals struck it down.

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Restrictions on child custody and visitation by a judge in a court order must be accompanied by a description of the steps that a parent can take to reestablish unsupervised custody and visitation. In a recent case captioned Bahls v. Bahls a parent asked for a rehearing on a prior decision that was rendered by the Court. The appellate court granted the motion for a rehearing and reissued a revised opinion. The appellate court reversed the trial court’s judgment because it failed to provide the specific steps required for the parent to end supervised visitation with her child. The trial court heard testimony from many witnesses on the appropriate timesharing arrangements for the parent and the child. The trial court ordered supervised visitation. The court also awarded ultimate parental responsibility to one of the parents. The Court permitted one parent to have most of the timesharing with the child and awarded supervised visitation to the other parent without providing any suggestion as to how unsupervised visitation could take place.

The Court of Appeal held that the lack of specific standards in an order as to how the other parent could eliminate restrictions on a parent’s timesharing was error. This applies to timesharing restrictions as well as the absolute prevention of child custody and visitation. A trial court is required to give a parent an opportunity to reestablish timesharing with his or her child. When a judgment does not set forth the specific steps that a parent can take to reestablish timesharing, it will be reversed. Since the trial court did not state the specific steps that the parent could take or let the parent know what was required of them to reestablish timesharing, the order was reversed.

To speak with a child custody attorney in Palm Beach Gardens, Florida contact Matthew Lane & Associates, P.A. at (561) 363-3400.

In a child custody and visitation proceeding, where time-sharing is ordered, the non-custodial parent’s right to the child on rotating holidays has become so routine and necessary that to deny it requires factual findings justifying that decision. In Mills v. Johnson, the Florida Court of Appeal stated: “Furthermore, the trial court erred in accepting and adopting a time ­sharing schedule that did not address holiday time-sharing. It is undisputed that the Former Husband failed to raise this issue in his exceptions to the magistrate’s report. Nonetheless, if the errors in the magistrate’s report are clear on its face, the trial court errs in adopting the report. See Torres v. Torres, 98 So. 3d 1171, 1171-72 (Fla. 2d DCA 2011).

Such is the case here. Cf. Crittenden v. Davis, 89 So. 3d 1098,1101 (Fla. 4thDCA 2012) (” ‘[W]here visitation is ordered, the non-custodial parent’s right to the child on rotating holidays has become so routine and necessary that to deny it requires factual findings justifying that decision.’” (quoting Todd v. Guillaume-Todd, 1 972 So. 2d 1003, 1006 (Fla. 4th DCA 2008))); Schumaker v. Schumaker, 931 So. 2d 271,274 (Fla. 5th DCA 2006) (holding that the trial court erred in failing to address holiday visitation). In light of I the fact that the magistrate determined that the parties have a “contentious parenting relationship,” it seems particularly imperative for the magistrate to recommend a holiday time-sharing schedule. See Blackburn v. Blackburn, 103 So. 3d 941, 942 (Fla. 2d DCA 2012) (“[T]he magistrate erroneously declined to set a holiday time-sharing schedule as requested. As a result, the parties who already have exhibited animosity toward one another are left with the responsibility of setting a schedule by which they can share time with the children on / major holidays.”).

Therefore, we reverse the trial court’s award of alimony and direct the trial court to revisit the issue on remand. We also reverse the time ­sharing schedule to the extent that it does not address holiday time ­sharing and remand for the trial court to set a holiday time-sharing schedule. Affirmed in part; reversed and remanded in part.”

In a child custody and visitation proceeding under the Hague Convention, the right of access is the right to spend time-sharing with the child for a limited period of time in a place other than a child’s usual residence. The remedy for a violation of this right is not to force the return of the child. A parent’s right to withhold consent to take a child out of the country is a right of custody.

In Sanchez v. Suasti the Florida Court of Appeal recently stated: “The only disputed issue in this regard is whether the father had “rights of custody” under the Hague Convention. The trial court concluded the father merely had “rights of access.” The Hague Convention draws a distinction between a parent’s “rights of custody” and “rights of access.” A parent’s “right of access” is defined as “the right to take a child for a limited period of time to a place other than the child’s habitual residence. “Hague Convention, art.5.The remedy for the violation of a parent’s right of access does not include the right to force the return of the child. Instead, a court may, for example, “force the custodial parent to pay the travel costs of visitation, or make other provisions for the noncustodial parent to visit his or her child.” Abbott, 560 U.S. at 13 (internal citation omitted)…In Abbot, the United States Supreme Court held a non-custodial parent’s right to consent before the custodial parent could take the child to another country constituted “rights of custody” under the Hague Convention. Id. at 10…A parent’s right to determine the country of a child’s residence is a right of custody. “In doing so, the Court held a non­custodial parent’s joint right to determine a child’s country of residence constituted “rights of custody” under the Hague Convention. “

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In a child custody and visitation proceeding, to demonstrate a wrongful removal or retention of a child under the Hague Convention, a petitioner must establish: (i) the child is retained in a country outside the country of the child’s habitual residence, (ii) the removal must be a violation of the parents right of custody, and in particular the right to determine the child’s place of residence, and (iii) the right of custody was being exercised or would have been exercised absent the removal.

In Sanchez v. Suasti the Florida Court of Appeal recently stated: “To demonstrate a wrongful removal or retention of a child under the Hague Convention, a petitioner must establish three elements. Larbie v. Larbie, 690 F.3d 295, 307 (5th Or. 2012). First, the petitioner must show the child has been retained in a country outside the child’s country of habitual residence. Id. Second, the wrongful removal must be a violation of the petitioner’s ‘rights of custody,’ which ‘include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.’ Abbott, 560 U.S. 1, 9 (quoting Hague Convention, art. 5(a)) (emphasis added). These rights arise ‘by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.’ Hague Convention, art. 3. Finally, the petitioner must demonstrate the rights of custody ‘were actually being exercised or would have been exercised but for the removal.’ Wigley v. Hares, 82 So. 3d 932, 936 (Fla. 4th DCA 2011) (citing Hague Convention, art. 3).”

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In a child custody and visitation proceeding, the constitutional guarantee of due process dictates a full and fair opportunity to be heard in judicial proceedings. The failure to give a party the chance to present witnesses or testify violates this fundamental right. In Cole v. Cole, the Florida Court of Appeal recently stated: “…We conclude that in ruling, without giving the Father an opportunity to present evidence, the trial court abused its discretion and violated the Father’s right to procedural due process. The constitutional guarantee of due process dictates a full and fair opportunity to be heard in judicial proceedings. The failure to give a party the chance to present witnesses or testify violates this fundamental right. Henderson v. Lyons, 93 So. 3d 399 (Fla. 2d DCA 2012); see also Douglas v. Johnson, 65 So. 3d 605 (Fla. 2d DCA 2011); Smith v. Smith, 964 So. 2d 217 (Fla. 2d DCA 2007); Baron v. Baron, 941 So. 2d 1233 (Fla. 2d DCA 2006); Pettry v. Pettry, 706 So. 2d 107 (Fla. 5th DCA 1998).

‘[T]he right to be heard at an evidentiary hearing includes more than simply being allowed to be present and to speak. Instead, the right to be heard includes the right to ‘introduce evidence at a meaningful time and in a meaningful manner.’ Baron, 941 So. 3d at 1236 (quoting Brinkley v. County of Flagler, 769 So. 2d 468, 472 (Fla. 5th DCA 2000)). As Judge Orfinger stated in Pettry, 706 So. 2d at 108, ‘[p]erhaps the additional witnesses would not have impressed the court, but the husband had the right to present them and to argue his case at the conclusion of all the testimony.’ Accordingly, we reverse the judgment entered below and remand this cause for further proceedings. Upon remand, the trial court may, with the stipulation of the parties, re-open and conclude the prior evidentiary hearing, or, in the absence of such stipulation, must hold a new evidentiary hearing on the parties’ custody motions. See Alvord v. Alvord, 572 So. 2d 925, 926 (Fla. 3d DCA 1990) (stating a successor judge, who does not hear evidence heard by his predecessor, may only enter judgment upon a retrial or if the parties stipulate to a ruling based on the record of the prior proceedings). Reverse and remanded for further proceedings consistent with this opinion.”

To speak with a Singer Island, Florida, child custody and visitation attorney, contact Matthew Lane & Associates, P.A. at (561) 651-7273.

The trial court may disregard the parent’s agreed upon time-sharing agreement, if it is not in the best interests of the children. “Prior to entry of the final judgment, the former wife filed a motion to set aside the MSA and parenting plan, alleging that the MSA was invalid and unenforceable because…As to the parenting plan, the former wife alleged that it was no longer in the children’s best interests to reside with the former husband…A court is not bound by an agreement of parents regarding child support, custody, or visitation. Higgins v. Higgins, 945 So. 2d 593, 596 (Fla. 2d DCA 2006). As our sister court stated: ‘[i]t is undisputed, and should be indisputable, that a trial court’s responsibility to the child cannot be abdicated to any parent, any expert. That heavy responsibility mandates that a court is not bound by any agreement between parents, nor by the opinions of any expert or group of experts.’ Lane v. Lane, 599 So. 2d 218, 219 (Fla. 4th DCA 1992); see Feliciano v. Feliciano, 674 So. 2d 937 (Fla. 4th DCA 1996) (confirming that trial court is not bound by agreement regarding child support, custody, and visitation where it determines that it is not in best interests of children). Instead, the trial court is required to ‘determine all matters relating to parenting and time-sharing of each minor child of the parties in accordance with the best interests of the child….’ §61.13(2)(c), Fla. Stat. (2010); see Jones v. Jones, 674 So. 2d 770, 774 (Fla. 5th DCA 1996) (reiterating that ‘best interests of the children are to govern the custody decision, regardless of any stipulation between the parties’). Le v. Nguyen, 37 Fla. L. Weekly D1604 (Fla. 5th DCA July 6, 2012)

A Court is not bound by an agreement between the parties nor by opinions of experts concerning time-sharing. “It is undisputed, and should be indisputable, that a trial court’s responsibility to the child cannot be abdicated to any parent, any expert. That heavy responsibility mandates that a court is not bound by any agreement between parents, nor by the opinions of any experts or group of experts.” Lane v. Lane, 599 So. 2d 218, 219 (Fla. 4th DCA 992); see Feliciano v. Feliciano, 674 So. 2d 937 (Fla. 4th DCA 1996) (confirming that a trial court is not bound by an agreement regarding child support, custody, and visitation where it determines that it is not in the best interests of the children). As noted by the reviewing court in Jones v. Jones, 674 So. 2d 770, 774 (Fla. 5th DCA 1996), the “best interests of the children are to govern the child custody decisions, regardless of any stipulation between the parties.” Sparks v. Sparks.