Posted by Nydia Streets of Streets Law in Florida Child Custody
When a parent fails to follow a parenting plan, is found in contempt and still fails to follow the plan, what is a court to do? One appellate case talks about what a court is not allowed to do when sanctioning the non-compliant parent.
In the case Lewis v. Juliano, 4D17-2544 (Fla. 4th DCA 2018), the father filed a motion for contempt against the mother alleging she was not providing him her address as required by the parties’ parenting plan. The court held a hearing and ordered that the mother provide her address. Almost one year later, the father again filed a motion alleging the mother still was not cooperating in providing her address and that she should not be able to exercise her summer timesharing without providing her address.
Another hearing was held and the court granted the father’s motion, ordering that the mother could not exercise her timesharing until she provided her physical address to the father. The mother appealed, arguing the order was against the public policy of the state to ensure frequent and continuing contact between the parties, and that it was error for the trial court to fail to consider the best interest of the child in essentially cancelling the mother’s timesharing.
The appellate court agreed with the mother, holding, “Modification of timesharing in the context of a contempt proceeding is permissible only if: (1) the moving party has affirmatively alleged and proven a substantial change in circumstances; (2) the minor child's best interests require the modification; and (3) sufficient notice of the proposed modification was afforded to the nonmoving party.” (internal citation omitted).
The appellate court further held, “Here, the trial court abused its discretion by modifying the timesharing schedule as a sanction for the former wife's failure to provide her physical address. The trial court's order had the effect of temporarily modifying the timesharing schedule until the former wife provided her address. Although the former husband's motion provided sufficient notice of the proposed suspension of the former wife's timesharing until she provided her address, the other two requirements for a modification were not met. The trial court did not find that a substantial change in circumstances occurred. Nor did the trial court find that the child's best interests required the modification. The trial court's order was therefore improper.”
The trial court was instructed that it could impose sanctions other than a modification of the timesharing. If you are having trouble enforcing your parenting plan or other court order, contact a Miami child custody lawyer to learn about your options. A consultation can help you understand what remedies are available to you.