Posted by Nydia Streets of Streets Law in Florida Child Custody

When a parent is sentenced to a lengthy imprisonment, how does this affect child custody rights in Florida? The paramount concern in a Florida child custody case is the best interest of a child. While there is no one-size-fits-all approach to addressing cases in which one parent is incarcerated, the court can take into consideration the feasibility of visits with the incarcerated parent and telephone communication. This was an issue in the case Mitchell v. Ahmed, 1D2022-1896 (Fla. 1st DCA December 13, 2023).

The parties entered a parenting plan in 2012 which granted majority time-sharing to the mother and obligated the father to pay child support. The plan also provided for telephone contact between the child and the parents on certain days of the week. In 2019, the father was arrested for health care fraud, whereupon the mother sought emergency sole parental responsibility and and sole custody. The father was later sentenced to over seventeen years in federal prison. The only pleadings pending before the court at the time a final hearing was held on modification was the mother’s petition to restrict or suspend the father’s time-sharing, and the father’s petition to modify child support. The father also filed a motion to enforce the phone calls he was entitled to under the original parenting plan. After the hearing, the court entered a final judgment which required the child to visit with the father in prison (despite evidence at the hearing that the child did not want to visit the father in prison), and required the mother to make the child available for a phone call with the father on multiple days throughout the week. The mother appealed, arguing none of this relief was sought by father in any pleadings.

Using the abuse of discretion standard of review, the appellate court noted “A request to modify cannot be made by motion and must be initiated by supplemental petition. [. . .] The mother’s supplemental petition invoked the trial court’s jurisdiction to modify timesharing. Her petition asked the court to suspend or restrict the father’s timesharing pending a determination of the child’s best interests. While the lower court had jurisdiction to consider timesharing under the mother’s petition, the court erred in concluding it could unilaterally craft a new parenting plan of its own accord. The father’s supplemental petition did not plead for any relief related to timesharing or communication with the child. It is an abuse of discretion and reversible error for a court to award relief that is not requested in the pleadings. [. . .] The father did not file a proper pleading requesting prison visitation or modification to the phone call schedule. The first time he made the request was at the final hearing. In granting the father’s request, the court violated the mother’s due process right to be heard and defend against such a significant change.”

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