Visitation or, as it’s called now under the 2008 Florida statute, parenting time is determined by the two parents entering into a parenting agreement or the court ordering a parenting schedule.
The parenting agreement or parenting schedule will outline the time you will spend with the child. If you are have not prepared a parenting agreement or the court has not ordered a parenting schedule, you can ask the court for a temporary schedule immediately until all the details of the schedule are resolved.
Upon having an order entered that awards you parenting time (or visitation) you can enforce that order by asking the other parent to comply with the order. If that parent refuses to comply, you can call the police, show them the order and the police will enforce the order.
If the police are not available or, more typically, the other parent and the child are not available for the hand-off as scheduled there are several remedies you can purse in the courts. If your child lives in Naples, Florida the appropriate venue for these remedies will be the Collier County courthouse.
- Make-up time.
If you missed your parenting time, you will be awarded an equivalent amount of parenting time upon showing that “a parent refuse[d] to honor the time-sharing schedule in the parenting plan without proper cause.” Fla. Stat. Sec. 61.13(4)(c)
This means the other parent missed your parenting time but without a good reason, like an emergency. It does not require that the parent malevolently or even purposely refused to honor the agreement or order. So, if the other parent forgot or was confused you can still get make up time with your child.
The exact make up time will be calculated by the judge in the best interests of the child. Cheek v. Hesik, 73 So. 3d 340 (Fla. 1st DCA 2011) So, if you missed a week during your scheduled vacation, a judge may order you even more time while you’re not on vacation. The judge will consider all factors to try to give you appropriate compensation for the time lost. This will make up time order will obviously override whatever the current agreement or order currently says.
The statute also provides that the court award the aggrieved parent their attorneys’ fees against the offending parent.
- Enforcement Action.
If one parent’s refusal to honor parenting time is particularly egregious and purposeful the other parent may seek to hold the offending parent in contempt of court.
A finding of contempt of court can have penalties as serious as jail time. Because of the severity of a finding of contempt, these actions are reserved for extreme circumstances where there is no question that the denial of parenting time was willful and contumacious.
An enforcement action asking that the other parent be held in contempt is usually pursued after previous actions asking for make-up time have been filed and the other parent is still not cooperating with the agreement or order.
- Changing Custody.
If the court finds that a parent’s failure to obey the parenting time orders have begun to adversely affect the child, the court has the power to change the custody of the child. Tucker v. Greenberg, 674 So. 2d 807 (Fla. 5th DCA 1996)
Changing custody is really the solution of last resort and should not be expected until after numerous findings of contempt of court. Typically, a change of custody is effectuated by a motion to modify rather than the result of a 2nd or 3rd finding of contempt.
However, findings of persistent refusal to follow orders can be a substantial change of circumstance as required under the express language of the statute that allows for a modification of parenting time (or custody). Williams vs. Williams, 676 So. 2d 493 (Fla. 5th DCA 1996). Thus, a motion to modify will often cite the contempt findings as a basis to modify the parenting agreement and/or schedule.
Any modification, for whatever reason, will always have to be in the best interests of the child. Kane v. Dizney, 702 So. 2d 1319 (Fla 5th DCA 1997)
If your visitation is being denied by someone who isn’t the other parent, like a new boyfriend or a grandparent, you can sue that person directly outside of family court through a tort action. Stone v. Wall, 734 So.2d 1038 (1999)
If your visitation or parenting time is being denied and your child lives in Naples, Florida, contact my Naples, Florida office to discuss all of your options.