Articles Posted in Child Custody And Visitation

A child custody and visitation case involving a request by a parent to have her spouse psychologically evaluated was recently decided by the Florida Court of Appeal.  In a case captioned Ludwigsen v. Ludwigsen, the Florida Court of Appeal stated that in order for a psychological evaluation to be required by a Court, the party submitting the request must demonstrate that: (i) the condition for which the examination is being sought is in controversy, and (ii) that good cause exists to order the examination.  In order for a condition to be “in controversy”, a parent’s mental condition must be directly involved in the determination of the issue that is currently before the Court.  “Good cause” is shown where a parent has been unable to meet the needs of the parties’ children.

The requesting party must provide the trial court with verified allegations that the other parent has a mental condition that substantially affects his or her ability to raise their children, or that a parent has been unable to meet their children’s needs. This can be accomplished by demonstrating that the other parent’s mental illness places the children at risk of abuse, abandonment or neglect.  The fact that parties are contesting time-sharing (custody and  visitation), does not, in and of itself, warrant a psychological evaluation.  The issue is not whether a parent has demonstrated good or bad parenting.  The Court is looking for an indicator of significant mental illness that affect the wellbeing of the children.  The requesting party is also required to demonstrate to the Court that expert testimony is required to resolve the child-related issue that is before the Court.

The Order requiring a parent to submit to a psychological examination must clearly set forth the parameters of the evaluation, including its scope, length, manner and type of testing.  The Order must also identity the person or persons who are permitted to conduct the evaluation.

Holiday child custody and visitation was recently discussed by the Florida Court of Appeal in a case captioned Glevis v. Glevis.   In this case, the Husband and Wife met in a foreign country.  After they dated for a few years, the Husband brought the Wife to the United States.  The parties got married in the United States.  The Wife became pregnant, and the couple’s relationship deteriorated.  The Husband moved out of their home.  Eventually, the parties got back together.  The Husband found a job in Tampa, Florida, but the Wife refused to move to Tampa.  The Husband then found a home for the family in Bonita Springs.  After an argument, the Husband moved out of the marital home.  A dissolution of marriage proceeding was held.  The trial court awarded the Husband exclusive time-sharing with the baby.  Subsequently, the Wife was awarded supervised time-sharing.

When the trial court created a parenting plan for the parties, it did not include holiday custody and visitation with the child.  The Florida Court of Appeal ruled that when a court awards time-sharing to both parties, rotating holiday time-sharing is required unless there is a factual basis that justifies the denial of holiday time-sharing.  Since the trial court in Glevis v. Glevis denied the Wife holiday time-sharing without making the required factual findings, the trial court’s decision was reversed.

Additionally, in Glevis v. Glevis, the Magistrate recommended that the parties have shared parental responsibility, and awarded the Husband ultimate decision making authority.  Florida statutes require that in making determinations regarding parental responsibility, the best interests of the children govern.  In Florida, trial courts are directed to order shared parental responsibility unless there is a showing that it would be detrimental to the best interests of the parties’ children.  With shared parental responsibility, major decisions involving the children’s welfare are made after both parents have the opportunity to confer and reach an agreement. When courts determine that it would be detrimental for the children to have shared parental responsibility, courts may award sole parental responsibility.

A child custody and visitation case was recently decided by the Florida Court of Appeal in a case captioned Frye v. Cuomo. In this case, the parties were married for nine-years. They had two minor children at the time of the divorce. The mother filed a Petition for Dissolution of Marriage, citing the father’s history of alcohol abuse. As a condition to exercise timesharing, the trial court required the father to completely abstain from alcohol, and ordered the father to submit to blood alcohol testing at the beginning of every visitation and at the end of every visitation. The trial court also awarded the mother the authority to demand immediate and periodic testing of the father at any time, and required the Father to pay for the cost of the testing device.

In reaching its decision, the Florida Court of Appeal pointed out that restrictions on timesharing are usually disfavored, unless they are necessary to protect the children. Parents have a constitutionally protected right to have a meaningful relationship with their children. Custody and visitation should not be denied to either parent as long as they conduct themselves in a manner that does not adversely affect the children when they are in the presence of the children. Restrictions on custody and visitation must be in the best interests of the children before they will be upheld on appeal.

In this time-sharing case, because of the father’s proven history of substance abuse, the Florida Court of Appeal affirmed the lower court’s ruling and ordered the father to completely abstain from alcohol, and required him to submit to blood alcohol content testing before and after each visitation. The Court overruled the trial court’s requirement that the Father submit to periodic testing at the mother’s request. Finally, the Court apportioned the costs associated with the substance abuse testing device between the parties.

A Child Custody and Visitation case involving a child’s custody preference was recently decided by the Florida Court of Appeal. In a case captioned Talarico v. Talarico, the mother and father had two children. The parties divorced and negotiated parenting plans. Several years later, the father sought a modification of child custody and visitation, which the trial court granted. The Florida Court of Appeals reversed the trial court’s decision to grant this modification.

The Florida Court of Appeal stated that in order to grant a modification of child custody, the moving party must prove that a material, substantial and unanticipated change of circumstances occurred which warrants the modification. This change of circumstances must adversely affect the children’s welfare. One of the factors that the trial court is permitted to consider in reaching a custody decision is a child’s reasonable preference. In order to consider a child’s custody preference, the trial court must find that the child has sufficient experience, understanding and intelligence to express a preference. The Court of Appeal stated that trial courts ordinarily do not desire to have children testify in court against one of their parents. In the event that a trial court decides to permit such testimony, the preferred method to obtain such testimony is by an interview conducted by the trial judge outside of the presence of the parents. These interviews are either recorded (unless otherwise agreed to by the parties), or the judge provides a summary of the interviews.

In this case, the Florida Court of Appeal ruled that the absence of a recording or a summary of the children’s interviews with the trial court constituted a violation of the mother’s Due Process rights under the United States Constitution. Therefore the Florida Court of Appeal reversed the trial court’s determination and remanded the case back to the trial court for another hearing.

A case involving unmarried parents was recently decided by the Florida Court of Appeals.  In a case captioned Booth v. Hicks, the Mother appealed a final judgment that was rendered against her by the trial court. In this judgment, the lower court awarded the Father sole custody and parental responsibility of the parties’ child. The parties’ child lived primarily with the Mother. The Father petitioned the court to establish a parenting plan that awarded the Mother timesharing during the week and the Father timesharing on weekends. The Mother provided the trial court with her own parenting plan in which she sought sole parental responsibility.

The trial court held a final hearing in this matter. The Mother failed to appear at the final hearing. The Father presented testimony and two of his relatives also testified. The trial court awarded the Father sole custody and sole parental responsibility based upon the fact that the Mother did not appear at the hearing. The Mother filed a motion for rehearing, which was denied by the trial court.

The Florida Court of Appeal reversed the trial court’s time-sharing decision. The Court ruled that a trial court may only make an award of custody and parental responsibility based upon the best interests of a child. The Court of Appeal went on to state that custody should not be denied to a parent as long that parent, while in the presence of the child, conducts herself or himself in a manner that will not adversely affect the child. The Court of Appeal pointed out that the complete denial of time-sharing is almost never proper. The Court ruled that the best interests of the child overrides a parent’s failure to appear at a hearing. A parties’ actions in a court proceeding do not override a child’s right to have his or her custody determination decided based on his or her best interests. A child may not be punished for a parent’s misconduct. Custody is based upon the child’s best interests, not upon one of the parent’s default.

In child custody and visitation cases, a parent’s request to the trial court to have the other parent psychologically evaluated requires a showing that: (i) the request for the evaluation is related to a matter that is in controversy, and (ii) that there is good cause for the examination.

In a recently decided case captioned Reno v. Reno, the Former Husband filed an Emergency Motion for Mental Examination and Supervised Timesharing pursuant to Florida Rule of Civil Procedure 1.360 and rule 12.360. The Florida Court of Appeal stated that the party requesting the examination bears the burden of proof. Seeking custody does not place the other party’s mental condition in controversy. The other party’s mental condition must directly involve a material element in the case. Allegations of mental illness must be verified by the parent seeking the evaluation, and must show that the parent is having emotional issues that could substantially impact upon his or her ability to parent a child.

The focus of the inquiry is not on good parenting or bad parenting. The focus is on deeper concern with the parent’s emotional health. Good cause is substantiated by proof that a parent has not met the needs of the children. The party requesting the evaluation must show that the alleged emotional illness places a child at risk of abandonment, abuse, or neglect. The requesting party must show that a parent’s emotional condition would jeopardize the children’s wellbeing.

Child Custody and Visitation in Florida was recently addressed by the Florida Court of Appeal in a case captioned Beck v. Lewis. In this case the father appealed the temporary order of the court which created a temporary timesharing schedule for the parents. The trial court granted temporary primary custody of the child to the mother. The Court of Appeal affirmed this temporary order. The temporary order terminated a prior court order that awarded temporary timesharing to the child’s grandmother.

The trial court order terminated the grandmother’s timesharing, establishing the mother as the primary custodian of the child, and awarding transportation expenses. The order provided for the father to have timesharing with the child one weekend per month, during the summer and during holidays. The father works on weekends as a DJ. The father challenged the trial court’s order based upon the fact that the timesharing schedule impairs his ability to earn a living on weekends.

The Florida Court of Appeal ruled on Child Custody and Visitation in crafting a final order, the Court should take into account the financial impact of the parenting plan on the father. The Court also pointed out that in entering a final judgment, the trial court may revisit its earlier decision based upon the evidence that is presented to it at the final hearing.

Child Custody and Visitation for Same-Sex Couples in Florida was recently discussed by the Florida Court of Appeal in a case captioned Springer v. Springer. In Springer v. Springer a child was born to a biological mother while she was in a same-sex relationship. Her partner asked the Court to recognize a parenting plan that both parties entered into. The parties started their relationship in the State of Ohio. The Biological Mother became pregnant by a donor’s sperm. The Former Partner had no biological connection to the child. The parties entered into a timesharing agreement which contained a provision that the parties were to share timesharing and parental responsibility. The parties separated after they moved to Florida. The parties did not marry and the child was not adopted by the Former Partner. The Former Partner sought time-sharing and parental responsibility of the child.

The Florida Court of Appeal ruled that a Child Custody and Visitation co-parenting agreement between a nonparent and a biological parent is unenforceable under Florida Law. The Court ruled that the time-sharing and parental responsibility provisions contained in the Florida Statutes only apply to parents, not to nonparents. A nonparent in a same-sex relationship has no standing to assert parental responsibility or time-sharing rights. A birth mother’s rights that are protected by the Constitution. These Constitutional rights prevail over a partner’s claims, when that partner is not the biological or legal parent. A partner who does not have a biological or legal connection to a child does not have Child Custody and Visitation rights under Florida law.

To speak with a same-sex divorce attorney in West Palm Beach, Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

A Child Custody and Visitation case involving emergency intervention by the Court was recently decided by the Florida Court of Appeal in a case captioned McAbee v. McAbee. In this case the parents married in South Carolina and divorced in Virginia. They have one child. The mother alleged that the father sexually abused the child in Virginia and in Florida. The father admitted to sexually abusing the child in letters that he sent to the mother. The father also documented to having a sex addiction. The father later denied the sexual abuse and claimed that the sex addiction was a reaction to taking certain medication. The mother filed for custody in Virginia and a psychologist stated that the father was no threat to the child. The father moved to Florida and filed for divorce in Virginia. The mother also moved to Florida. The Virginia court granted the father supervised time-sharing. The mother petitioned for relief in Florida and the case was dismissed. Later on, the Virginia court gave the father graduated timesharing. The mother filed more petitions in Florida and the Florida court denied her petitions. The mother moved to South Carolina with the child. The Virginia court then awarded the father sole custody. The mother sought a protective order in South Carolina, which was denied. The mother then filed an action in Broward County, Florida. The Broward County judge found that the child had been abused. The court issued an injunction and ordered the child to have no contact with the father.

The Florida Court of Appeal reversed and remanded the Child Custody and Visitation case back to the trial court because the trial court failed to communicate with the Virginia court (in which custody proceedings had been ongoing for years) before issuing its ruling. This violated the UCCJEA which requires the trial court, under its temporary emergency jurisdiction provisions, to confer with the trial court in Virginia before it made its timesharing determination. The trial court was required to immediately contact the Virginia court when it learned of its timesharing orders.

To speak with a Child Custody and Visitation attorney in Palm Beach Gardens, Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.