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6-12-14 It's The Law - Rarely Is A Parent Excluded From Time-sharing With A Child

It's The Law

Rarley Is A Parent Excluded From Time-sharing With A Child

(06/12/14)

Question:

A friend of mine recently got divorced. The judge ordered that he not have any visitation with his child and that his former wife have 100% of what was termed "time-sharing." I think that decision is wrong. Can you explain?

Answer:

Florida courts have long explained that children have a right to a continuing relationship with both parents, even when the parents separate or divorce. The relationship between parent and child is not terminated by divorce, although it is impacted. When the parents cannot agree on the amount of time each is to spend with their children after divorce, that responsibility passes to a judge.

In 2008, the concept of custody and visitation was statutorily replaced with "time-sharing." The parties or the judge establish a parenting plan. The plan includes a time-sharing schedule and governs each parent's relationship with his or her minor child. The best interest of the child is the primary consideration.

Section 61.13 of Florida Statutes sets forth 19 factors to be considered in time-sharing and concludes by directing the court to consider "any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule." Other factors include demonstrated capacity and disposition of each parent to encourage a close and continuing parent-child relationship; length of time the child has lived in a stable, satisfactory environment; moral fitness of the parent; mental and physical health of the parents; home school and community record of the child and even the reasonable preference of the child, if the child is deemed to be of sufficient intelligence, understanding and experience.

A trial judge is to consider and weigh those factors and generally makes a specific finding as to each pertinent factor. Although the statute allows awarding 100% of time with a child to one parent, such an award would run counter to the numerous Florida decisions confirming it is in the best interest of a child to have a continuing relationship with both parents. That exact issue was addressed by the court in the recent case of Davis v. Davis.

In Davis, the wife filed a petition for dissolution of marriage. She requested the husband only be allowed supervised visitation because of concerns with emotional and physical abuse. The wife testified the husband had not been in Florida for over five years and that the husband knew nothing about the child's school teachers, activities or medical history. The husband did not appear at the hearing.

The court found it was "not appropriate at this time for the former husband to have any visitation/time-sharing with the minor child" because "the former husband does not know the minor child at all" and because "the minor child does not know who the former husband is." The former husband appealed.

The appellate court first noted that Florida statutes confirm it is the public policy of Florida that each minor have frequent and continuing contact with both parents after a divorce. It quoted a 1949 Florida Supreme Court case which held that the privilege of visiting a minor child should never be denied either parent as long as the parent conducts himself or herself, while in the presence of the child, in a manner which will not adversely affect the morals or welfare of the child. It also emphasized that a parent has a constitutionally protected inherent right to a meaningful relationship with his or her children. The court ruled that the trial judge abused discretion in denying the former husband any time-sharing with the child because the evidence did not establish denial was necessary to protect the child's welfare.

The court explained that restriction on visitation is generally disfavored, unless restriction is needed to protect the welfare of a child. The former husband's absence from Florida and the fact that he and the child did not know each other, did not establish it would be detrimental or harmful for the former husband to spend time with the child.

The court also explained that the judgment was deficient because it did not explain steps the former husband must take to establish time-sharing with the child. When time-sharing is denied, the court must give the denied parent a road map to reconnecting with his or her children. If the order does not set forth specific steps to re-establish time-sharing, the parent is prevented from knowing what is expected and any successor judge is precluded from monitoring the parent's progress. The trial judge in this case created a catch 22 whereby the former husband could never rectify the problem that resulted in his loss of time-sharing.

Children are too often caught in the cross-fire of a divorce. Although a parent might truly feel a child would be better off if the child is with that parent at all times, mixed motive of punishing the other parent is often present. That makes these cases difficult for judges and increases the need for the cooler head of an experienced attorney to help resolve these disputes.

By: William G. Morris, Esquire

William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.

Questions for this column can be sent to: William G. Morris, e-mail: wgmorrislaw@embarqmail.com or by fax, (239) 642-0722 or

The Marco Island Eagle

Other articles of interest can be viewed at our website, www.wgmorrislaw.com.