Posted by Nydia Streets of Streets Law in Florida Child Custody
Supervised time-sharing can be ordered in a Florida parenting plan when it is in the best interest of a child. A recent Florida Supreme Court case, C.N. v. I.G.C., No. SC20-505 (Fla. Apr. 29, 2021), makes it clear that when supervised visits are ordered, a court does not have to specify steps the parent must take to regain unsupervised visits. This is illustrated in the case Piccinni v. Waxer, 5D20-528 (Fla. 5th DCA May 14, 2021).
The parties were involved in a paternity case. The final judgment awarded the father supervised time-sharing. For holiday time-sharing, the order stated the father was to notify the mother of his chosen holiday time-sharing at least two weeks in advance, leaving it up to the mother as to whether or not the holiday time-sharing would occur. The father was also found to be voluntarily underemployed and income was imputed to him at his prior earning level which was more than twice his actual earning level at the time of trial. The evidence showed that before the child’s birth, the father voluntarily left a job paying him almost $70,000 annually, and that shortly thereafter he filed his paternity action. At the time of trial over two years later, the father was earning $30,000 working for his family’s business. The father appealed.
Addressing the father’s argument that the trial court committed error by not including a plan for the father to regain unsupervised time-sharing, the appellate court disagreed, noting “The mother in C.N. appealed our decision to the Florida Supreme Court, which recently agreed with us that a final judgment modifying a preexisting parenting plan is not legally deficient simply for failing to give such specific steps.” Moving on to the father’s appeal regarding holiday time-sharing, the appellate court agreed with him, holding “We see this provision as improperly placing Father’s holiday timesharing with his son essentially at the discretion of Mother and not of the court. [internal citation omitted]. As the amended final judgment provides no explanation why Father has scheduled supervised timesharing with his son on other, non-holiday days, yet no definitive timesharing on holidays, we direct that, on remand, the trial court shall provide Father with scheduled holiday timesharing, to be exercised with any supervisory safeguard as the court deems necessary.”
Last, addressing Father’s contention that it was error to impute income to calculate child support, the appellate court noted the standard for imputing income: “To properly impute income to an unemployed or underemployed spouse or parent under section 61.30(2)(b), Florida Statutes (2018), our court has held that a trial court must first find that ‘any ‘termination of income was voluntary’; and second, that the spouse’s underemployment was owing to ‘less than diligent and bona fide efforts to find employment paying income at a level equal to or better than that formerly received.’” (internal citation omitted).
The court continued: “The trial court here essentially determined that Father was underemployed at his $30,000-per-year job. While the trial evidence supported the required finding made by the court as to the first prong for imputation of income—that Father’s termination of his income from his prior, higher-paying job was voluntary—the court made no findings as to the requisite second prong. In its defense, Mother, as the party having the burden of proving Father’s underemployment, presented no evidence to the trial court to show that Father was being less than diligent and bona fide in seeking employment at his previous, higher income level.” The appellate court also determined that the trial court’s determination that the father’s criminal history contributed to his voluntary underemployment, there was no evidence presented to the court that was related to this. Therefore, it was inappropriate for the trial court to base imputation on this factor.
Supervised visits are usually a more extreme approach to a child custody case. If this is an issue in your case, schedule a consultation with a Miami family law attorney to determine the best way to proceed.