Posted by Nydia Streets of Streets Law in Florida Child Custody

When a parent withholds time-sharing from another parent, this may form the basis for a court to modify a Florida parenting plan. In order for this to happen, the parent who has been denied time-sharing must request the modification, and the court must find that the modification is in the best interest of the child. Modification on this basis was an issue in the case Nicholas v. Grant, 2D20-3298 (Fla. 2d DCA October 20, 2021).

In March 2020, a final judgment of paternity was granted which specified supervised visitation for the father initially with unsupervised visits to follow after he completed certain steps specified in the parenting plan. Subsequently, the mother filed a motion to clarify the parenting plan, and the father filed a motion for pick up order alleging the mother was withholding time-sharing. At a hearing on the mother’s motion for clarification, there was indication that the mother was withholding time-sharing. The court entered an order on the mother’s motion for clarification, but did not address the father’s motion for pick-up.

The father later filed a second motion for pick-up alleging the mother was continuing to deny him time-sharing. At a hearing on the motion, it was determined that the mother had denied the father 23 days of time-sharing. The court therefore granted him 23 days of make-up time-sharing, adding the following provision: “Pursuant to the Final Judgment, . . . [the] Father is currently entitled to unsupervised timesharing with Minor Child on Wednesday overnight and every other weekend from Friday to Monday school drop off following the completion of an initial phase of unsupervised timesharing outlined . . . in the Final Judgment." The mother appealed, arguing the order improperly gave the father unsupervised time-sharing which he did not request and which the court did not find was in the best interest of the child.

The appellate court agreed with the mother. The court held “The Father's emergency motion did not seek modification of his time-sharing from supervised to unsupervised, and the issue was not raised at either postjudgment hearing. As such, the trial court awarded a remedy that the Father did not seek and that the Mother was not put on notice to defend against. ‘[C]ourts are not authorized to award relief not requested in the pleadings. To grant unrequested relief is an abuse of discretion and reversible error.’ (internal citations omitted) [. . .] Additionally, the trial court's order does not address whether changing the Father's time-sharing to unsupervised is in the best interests of the child. This is a requirement whether the modification was granted as a response to the Mother's failure to comply with the trial court's parenting plan, see § 61.13(4)(c)(6), or was simply effectuated based on the Father complying with the terms of the final judgment of paternity, see § 61.13(3).”

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