Posted by Nydia Streets of Streets Law in Florida Child Custody

What is a parent supposed to do if a child refuses to go with the other parent during a court-ordered visitation exchange? This situation arose in the case Akre-Deschamps v. Smith, 2D17-4837 (Fla. 2d DCA March 20, 2019) after which the mother was held in contempt when the parties’ daughter refused to board a plane with the father during a time-sharing exchange.

The mother resided in France and the father resided in the United States. Since 2012, the parties’ daughter had been living with the father. The parties’ time-sharing order stated “The parties shall have the [child] ready on time with sufficient clothing packed, and ready at the agreed upon time of exchange." According to the appellate opinion, “The order specified the locations in the airport where the parties shall exchange the child. The party responsible for missing a travel connection was responsible for any costs incurred by the missed connection.”

In 2017, the child went to France to spend spring break with her mother. At the end of the time-sharing, the mother accompanied the child to the airport in France to return the child to the father. The father brought his girlfriend to the exchange. The child refused to go with the father and the time-sharing exchange did not occur. According to the appellate recitation of facts: “At the contempt hearing, the trial court found that the Mother physically prevented the Father from picking up the child when the child refused to leave. It also found that the Father's girlfriend tried to convince the child to calmly board the plane but the Mother rebuked the girlfriend, telling her to stop talking to the child and to leave the child alone. The trial court held the Mother in contempt for willfully failing to comply with the domestication order when she (1) ‘physically and intentionally prevented [the Father] from causing the Minor Child to board the airplane back to Florida from France,’ (2) ‘intentionally prevented [the Father's] girlfriend from speaking to, coaxing and convincing the Minor Child to willingly board the airplane,’ and (3) ‘made no attempt to arrange pick-up of the Minor Child . . . subsequent to the failed Paris, France, airport transfer on or about March 26, 2017.’

The mother appealed arguing the time-sharing order did not state anything about what the parties were to do if the child refused to go with a parent during an exchange. She argued that therefore she could not be held in contempt of provisions of an order that did not exist, and her duty to deliver the child to the father was complete when she appeared at the airport for the exchange. The appellate court disagreed with the mother, holding, “We find no clear error on the face of the record regarding the trial court's first and second findings of contempt, i.e., (1) the Mother's physical and intentional conduct directed toward the Father at the airport, and (2) the Mother's intentional conduct directed toward the Father's girlfriend. The Father correctly concedes that the trial court's domestication order, which is in our record, and oral ruling did not discuss what to do when the child adamantly refused to leave with him. Nor does the domestication order discuss the parties' obligations in the event of a failed transfer, beyond cost obligations.”

The court further held, “The trial court's first and second findings of contempt were not based on the Mother's failure to take adequate steps to ensure visitation where the child refused visitation. Instead, the trial court recognized at the contempt hearing that the child refused visitation but held the Mother in contempt because she actively interfered with the Father's and his girlfriend's attempts to retrieve the upset child for visitation with the Father. The trial court's written findings of contempt also focused on the Mother's intentional acts that prevented visitation; it made no mention of the child's refusal to visit the Father. And, the domestication order required the Mother to return the child to the Father at the airport before the end of spring break. The order did not allow the parties to refuse to permit visitation simply because the child refused visitation. Thus, the Mother may have initially made the child available, but she ultimately prevented the return of the child to the Father, in direct violation of the trial court's domestication order. Quite simply, she did not deliver custody of the child to the Father.”

The appellate court did find error with the trial court’s finding of contempt on the basis that the mother “made no attempt to arrange pick-up of the Minor Child . . . subsequent to the failed Paris, France, airport transfer on or about March 26, 2017." The case was therefore remanded with instructions to strike this part of the contempt order, but the contempt against the mother on all other grounds was affirmed. If you are unclear on provisions of your Florida child custody order, contact a Miami family law attorney to go over your parenting plan. A consultation may help you clarify your rights.