Author’s note by Attorney Howard Iken: This article discusses the differences between a Florida Custody Agreement and a Parenting Plan, as well as the factors considered by Florida courts when reaching a custody agreement. It also covers what happens when one parent fails to adhere to the custody agreement or Parenting Plan and the steps to take to enforce it, including attending a hearing and providing evidence. The article also explains the right of first refusal and its importance in custody agreements, as well as what to do if a parent violates it.
If you are a divorced parent in the state of Florida, you probably have a parenting plan which clearly spells out—among other things—which nights the child will spend with you, and which nights the child will spend with the other parent. Your custody agreement is in place, yet what do you do when one parent refuses to adhere to the agreement, constantly violating the judge’s orders? Whether you are the parent with primary parental responsibility or the parent who has been granted time-sharing, it is important that the judge’s orders be followed in order to ensure exchanges and time-sharing are not fraught with constant challenges. First of all, you may have questions regarding the differences between a Florida Custody Agreement and a Parenting Plan.
While both have many things in common, a custody agreement will clearly state whether parents are sharing physical custody and legal custody (the child lives with each parent in almost equal amounts of time, and both parents make all important decisions in the child’s life concerning education, religion, discipline, etc.) or whether one parent is the majority parent while the other has time-sharing, and if either parent has the primary legal right to make the important decisions in the child’s life on his or her own.
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Under Florida statute 61.13(2)(b), you will find the details of what must be included in a Parenting Plan. If the parents are unable to create a workable Parenting Plan on their own, the judge will step in and do it for them. A Florida Parenting Plan will include the following:
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If the court is forced to make a custody ruling or compile a parenting plan, they will consider the following factors:
When one parent refuses to follow the judge’s orders, the other should ask themselves what their ultimate goal is in going back to court to enforce a custody agreement. The goal could be to force the other parent to comply with the agreement, both in the short-term and in the long-term, to make up time-sharing that has been skipped, or perhaps just to make the other parent understand there are consequences for flouting the rules. Consider this—if your child is three years old now, and his or her other parent is already violating the custody agreement, and making your life miserable in the process, do you really want to deal with fifteen more years of such behavior? So, even if you believe you can deal with the other parent ignoring the rules right now, can you deal with it for fifteen years? In some cases, the parent with primary custody may be denying the other parent their court-ordered timesharing. As a result, the parent may have lost days or weeks of time with the child. The goal for that parent would be for the court to order make-up timesharing. Or perhaps one parent consistently fails to pick up or return the child on time, varying the time by as much as two, three, or even more hours. In the long run, it is better to address this issue right away and have the court threaten to hold the non-compliant party in contempt of court unless they begin following the rules set forth in the custody agreement.
Your Ayo and Iken attorney will need to file a targeted motion with the court which will ask the court to enforce the agreement and hold the non-compliant parent in contempt of court for ignoring the agreement. The motion is “targeted” because it will clearly state how the other parent is not complying with the agreement, i.e., failing to allow court-ordered visitation, failing to pick up and/or drop the child off at agreed times, etc. The motion will also probably state that because of these violations you have been forced to take on costs and burdens you would not otherwise have if the other parent had only respected the custody agreement.
A hearing will be set, and you and your attorney will put together evidence to prove your allegations that the other parent is not obeying the custody agreement. This evidence could include text messages, emails, and other communications between the parents. Witnesses could be called to corroborate your allegations, and you will likely be called to testify. Your attorney will probably give an opening statement, followed by a statement from the other parent’s attorney. Evidence will be presented, witnesses will testify, you will give your testimony, then the other parent will give his or her testimony. The judge will take all the information into consideration before reaching a decision. Parents who have clearly violated the custody agreement may be required to do many different things, such as:
It is important to note that a parent should never retaliate when the other parent refuses to comply with the custody agreement or Parenting Plan. Florida laws do not allow you to take matters into your own hands, and you are not allowed to withhold child support and/or alimony in retaliation for failure to allow court-ordered time-sharing.
If your custody agreement dealt specifically with right of first refusal, then your ex may be violating this specific agreement as well. The right of first refusal is often written directly into the legal custody orders or parenting plans with a goal of maximizing the time the children spend with both parents, most especially the noncustodial parent, who may already be limited in the time he or she has with the children. Basically, the right of first refusal states that, prior to contacting a babysitter, grandparent, friend or other family member to take care of the children, the other parent must be given the opportunity to care for them during the specified time period. Right of first refusal typically comes into play when the parent with primary custody comes down with the flu, has to take an unexpected business trip, has an emergency with another child or family member, needs to attend a doctor’s appointment, go to a job interview or any number of other spur-of-the-moment emergencies or necessities. In any of these instances, the custodial parent is required to first call the other parent and ask if they can fill in during this time prior to calling a third party.
The specific provisions of your right of first refusal will depend upon your children’s ages and after-school activities. In other words, after-school care, preschool or daycare may not fall under the right of first refusal rules so long as both parents have previously agreed that the child or children will regularly attend these types of care. When the children themselves are ill and the custodial parent really needs to be at work, rather than call a babysitter, the right of first refusal obligates him or her to call the other parent first if the child is to be kept out of school.
Some states consider the right of first refusal to be implicit in custody agreements, therefore may not expressly state it in the custody orders or Parenting Plan. The state of Florida does not have a law that requires a right of first refusal in the Parenting Plans, therefore parents who want this type of arrangement must include it in their Parenting Plan. Unfortunately, getting a hearing because your ex is not honoring the right of first refusal is likely to be a bit more difficult, because many courts may not consider it enough of a violation to warrant a hearing. Even so, constant violations of the right of first refusal can cause plenty of hard feelings. The parent who was awarded visitation and sees his or her children only every other weekend, once a month, or on holidays may feel bitter that the babysitter spends more time with the children than he or she does—and rightfully so.
If your ex continually violates your custody agreement or Parenting Plan, don’t wait until the situation has gotten completely out of control, rather address it immediately with your attorney. Your Ayo and Iken child custody attorney can file a motion on your behalf, and the judge will determine whether the agreements have been violated and what steps to take.
