Posted by Nydia Streets of Streets Law in Florida Child Custody
If a parent refuses to follow a parenting plan, can a court change custody as part of holding that parent in contempt? The answer depends on if certain procedural requirements have been met. This was an issue in the case J.G.J. v. J.H., 2D20-127 (Fla. 2d DCA April 30, 2021).
The father filed a motion for contempt against the mother. In this motion for contempt he requested that the court “change custody since mother refuses to obey court order”. After a hearing the mother was found in contempt of the parenting plan, and the court granted custody of the children to the father. The mother appealed, arguing three points: (1) the court did not consider the best interest of the children in modifying the parenting plan; (2) the court did not make a finding of a substantial change in circumstances; and (3) she was denied due process.
The appellate court agreed with the mother on all three points. First, the court held it was error for the trial court to change custody without a finding that the same was in the best interest of the children. Second, the court held “There is no indication in the contempt order that the trial court considered the substantial change in circumstances test or found that the facts of this case constituted a substantial change in circumstances for purposes of custody modification.” As to the due process argument, the appellate court held “However, the father did not allege in the body of the motion or in the prayer for relief that it was in the child's best interests to change timesharing or that a substantial change in circumstances required a change in timesharing [. . .] Accordingly, the trial court erred in modifying timesharing without the father properly pleading a substantial change in circumstances and the child's best interests.”
Learn how the law may apply to your case in a consultation with a Miami family law attorney.