A conflict in Florida courts on requiring the steps for reestablishment of timesharing
Florida’s District Courts of Appeal disagree on an important legal issue for parents of minor children with timesharing arrangements – whether the parents are divorced or separated or were never married – concerning modification of timesharing arrangements, historically called visitation schedules.
Must the court tell a parent how to regain lost parenting time?
The disputed question is whether when a court modifies a timesharing arrangement by eliminating or decreasing one parent’s time with a child the court must also include in its order the steps that parent must take to regain the lost visitation rights. In a March 6 decision, the Fifth District Court of Appeal (headquartered in Daytona Beach) certified the conflict between it and other district courts on this issue to the Florida Supreme Court in C.N. v. I.G.C.
This means the Supreme Court has jurisdiction to break the tie on the issue.
Modification of timesharing order
The C.N. case involved unmarried parents who had a court-approved timesharing arrangement for their daughter. The mother had primary residential custody and 60% of the overnights. Eventually, the mother alleged that the father was abusing the daughter and that the child was also being abused at her daycare.
Investigations concluded that the mother’s allegations were unsupported, and her behavior became “irrational and delusional,” according to the father. She stopped allowing him to see his daughter and she asked the court to suspend his timesharing rights. His response was to request that the court modify the timesharing order by reducing her parenting time.
Substantial change in circumstances and substantial evidence of the child’s best interests
The trial court applied Florida statute’s requirements for modifying a timesharing order. First, it found that there had been a substantial change in circumstances and second, that it would be in the child’s best interests to amend the timesharing. Accordingly, it gave the father primary residential custody and significantly reduced the mother’s parenting time.
On appeal, the Fifth District upheld the order modifying parenting time, finding that the trial court had not abused its discretion and that the decision was based on substantial evidence.
The mother also argued that the trial court erred because it did not lay out in its order the steps she must take in the future to get her parenting-time rights restored. The Fifth District rejected this argument because the parenting-plan modification statute “neither authorizes nor requires” the court to do this.
The court reasoned that it would be illegally using legislative power if it in essence modified the statute by interpreting it as the mother urged. It cited the Third and First Districts in support.
The court acknowledged that other districts (Second and Fourth) have held differently, requiring “specific steps necessary to reestablish timesharing.” The Fifth District went on to conclude that it could not “endorse the displacement of a legislatively supplied standard with a judicially created process.”
Finally, the court wrote that instead of doing specific court-ordered things to regain visitation, the mother instead could come back and ask for future modification based on the standard set out in statute: that there has been a substantial change in circumstances and that the proposed change would be in the daughter’s best interest.
We will continue to monitor whether the Florida Supreme Court agrees to decide this issue on which the lower courts are divided.