Posted by Nydia Streets of Streets Law in Florida Child Custody

If a parent is not following a Florida parenting plan, can the court change the plan? Under certain circumstances, a parenting plan can be amended when it is not being abided by. This was an issue in the case Bruno v. Moreno, 2D20-3172 (Fla. 2d DCA August 25, 2021).

A final judgment of paternity was entered previously which granted the father a minimum amount of time-sharing due to the parties’ cordial relationship. The court at that time also ordered "[w]hen the child is with one parent, the other parent shall have open and reasonable rights of telephonic communication with the child, reasonable being one phone call per day." About a year after the final judgment was entered the father filed a motion for contempt, alleging the mother had not allowed the father to have time-sharing or communication with the parties’ child for three weeks.

The trial court held a hearing and found the mother to be in contempt of the parenting plan. It also ordered the time-sharing to be changed to a seven-day rotating schedule. The mother appealed, arguing it was error to hold her in contempt because the time-sharing stated in the original order was ambiguous. The mother also argued the trial court violated her due process rights when it changed the time-sharing schedule as a punishment when the father had not requested modification of the time-sharing schedule.

The appellate court disagreed with the mother that the parenting plan was ambiguous. It held “We find no merit in this argument because the final judgment of paternity was clear that the Father should be given the minimum amount of timesharing; that while the child was with one parent, the other parent was entitled to know where the child was; and that while the child was with one parent, the other parent was entitled to telephonically communicate with the child at least once per day. According to the trial court's findings in its contempt order, three weeks had passed during which the Mother did not allow the Father to visit or communicate telephonically with the child and failed to notify the Father of the child's whereabouts. The Mother does not challenge these factual findings on appeal and has not provided this court with a transcript of the hearing below. Accordingly, we accept these findings as true.”

Regarding the mother’s due process claim, the appellate court agreed with her and reversed the modification of the time-sharing schedule. It found that the father did not request this in his motion for contempt, nor did the court make a finding that such a change was in the best interest of the child. The appellate court additionally noted that the purpose of an order finding civil contempt is to coerce compliance with an order, and that changing custody does not accomplish this goal.

Making sure all steps are followed in your case is key to protecting the relief to which you are entitled. Schedule a consultation with a Miami family law attorney to discuss your case.