Can a Court Deny a Parties Time Sharing Completely?
Posted By Posted by Damien McKinney on Jun 9, 2014 1:25pm PDT || Jun 9, 2014
A recent Fourth District Court of Appeals case addressed if, and when, a Court may deny a parties time sharing with a minor child completely. In Davis v. Lopez-Davis, The wife filed a petition for divorce, seeking primary residential custody of the child and requesting that the husband be allowed supervised visitation because of concerns of emotional and physical abuse. The husband filed a counterpetition, also requesting primary custody of the child. During a hearing before a general magistrate, the wife testified that the husband had not been in Florida in over five years and that the husband did not know anything about the child's school, teachers, extracurricular activities, or medical history. The husband did not appear at the hearing.
The magistrate recommended awarding the wife 100% of the timesharing with the child. The magistrate found it was:
“not appropriate at this time for the Former Husband to have any visitation/time-sharing with the minor child” because “[t]he Former Husband does not know the minor child at all” and because “[t]he minor child does not know who the Former Husband is.” The trial court entered an amended final judgment of dissolution of marriage, adopting the magistrate’s report and recommendations. From this order, the husband appeals.
The appellate court did not agree with the trial court's ruling. The appellate court found that the legislature determined that in general, "[i]t is the public policy of this state that each minor child has frequent and continuing contact with both parents after . . . the marriage of the parties is dissolved. The privilege of visiting the minor children of the parties to a divorce proceeding should never be denied either parent so long as he or she conducts himself or herself, while in the presence of such children, in a manner which will not adversely affect the morals or welfare of such progeny.
A parent has a "constitutionally protected 'inherent right' to a meaningful relationship with his or her children." It further stated that "restriction of visitation is generally disfavored, unless the restriction is necessary to protect the welfare of the child."
The appellate court found that the husband's absence from Florida, and the fact that the husband and child do not know each other, does not establish that it would be detrimental or harmful for the husband to spend time with the child. The trial court failed to establish a reunification plan. The appellate court stated that the trial court:
It must clearly set forth the steps the parent must take in order to reestablish time-sharing with the children. Essentially, the court must give the parent the key to reconnecting with his or her children. An order that does not set forth the specific steps a parent must take to reestablish time-sharing, thus depriving the parent of that key, is deficient because it prevents the parent from knowing what is expected and prevents any successor judge from monitoring the parent’s progress.
This is often a difficult concept for clients to understand. In my practice, I have never seen a court completely deny a parent time sharing with a child forever. Even if the facts are very egregious. But, I often see clients sit and my office and ask that I request the Court deny the other parent time sharing completely. It is just not going to happen. The court will often order supervised time sharing for a period of time, but the time sharing will transition to unsupervised time sharing very quickly.
The case law sets forth a clear mandate that the trial court must follow. It must establish a reunification plan. The reunification plan must be specific and steps must be laid forth that can be monitored by successor judges. If the other parent is serious and willing to follow the steps, that other parent will eventually receive unsupervised, substantial time with the minor child.
If you are wishing to reconnect with an estranged minor child, contact your expert family law attorney to discuss your rights and responsibilities today.