Parenting agreements are documents which are frozen in time. The children grow up. The parties get into new relationships. The ups and downs of life are almost always completely unanticipated by the parenting agreement. So, it’s inevitable that one of the parties will eventually stop following a clause in the parenting agreement or act in direct defiance of the parenting agreement.
In this case, you have a few options in the Collier County, Florida courts.
1) Enforcement
You can file a motion or supplemental petition for enforcement of the agreement and that the other party be declared in contempt of court for not following the agreements clauses.
Most of the time, this puts the other party on official notice of their violation and they will continue to follow the parenting agreement. In such cases, the motion can be abandoned in the spirit of cooperation.
If the other party still refuses to cooperate after being taken to court, the court will order enforcement and possibly find the other party in contempt. If the other party is in contempt, the court can determine how it chooses to punish that other party, “Every court may punish contempts against it whether such contempts be direct, indirect, or constructive, and in any such proceeding the court shall proceed to hear and determine all questions of law and fact.” Fla. Stat. Sec. 38.22
If the court does sanction one of the parties it cannot sanction the party in such a way that the child’s best interests are affected. Sabatini v. Wigh, 98 So. 3d 244, 246 (Fla. 1st DCA 2012). So, no matter how much the parent violates the parenting order, do not expect the court to take away parenting time as a punishment.
If the order is not clear as to what behavior the parent was allowed or not allowed to engage in, the court will not hold the other parent in contempt. Bray v. Rimes, 574 So. 2d 1114 (Fla. 2d DCA 1990). In these cases, you will need to file a motion for clarification.
2) Clarification
Often the problem with the order that is being violated is that the order simply too vague and did not anticipate the circumstances where the parties disagree. In this case, either party can petition the court for a motion to clarify the order.
The advantage to a motion to clarify is twofold. A motion to clarify is not a hostile motion to hold someone in contempt, it is merely to specify what the parenting agreement should say and how the parties should follow the order in the future. A motion to clarify also does not require “a substantial change in circumstances” that a motion to modify would. Often you’ll actually be seeking a small modification but it’s preferable to characterize your request as a request for clarification.
3) Modification
The other parent’s behavior may simply reflect that the parenting agreement you have is no longer functional because the situation has changed so dramatically since the parenting agreement was entered. In this case, a motion for modification must allege a “substantial change in circumstances” has occurred and that the proposed change would be in the best interests of the child.
In all these matters you can file these requests to the court as motions and if the other parent appears in court or files an appearance, the court will proceed on the motions. But, if the other party does not appear or file their appearance you will have to file a supplemental petition and have them formally served with a process server so that they are officially on notice of the petition.
Contact my office in North Naples, Florida to see which of these options is best for you and your children.
