By: F. Susannah Collins, Attorney at Law
Family Law Attorney and
Florida Supreme Court Certified Family Law Mediator
Robinson Collins, P.L.
1604 Stockton Street
Jacksonville, Florida 32204
Telephone (904) 483-3857
Facsimile (904) 483-3853
Throughout history our world has been afflicted by a series of pandemics which have together successfully eradicated millions upon millions of our world’s populations.
The Plague began in Europe in the mid sixth century, decimating Constantinople (modern-day Istanbul) before moving through Europe, Asia and North Africa, and leaving behind an estimated thirty to fifty million dead. The Plague resurfaced eight hundred years later in 1347 and is still known as “The Black Death.” Two hundred million people fell victim to this epidemic in a matter of four years and thereafter the Plague continued to resurface another forty times throughout Europe, striking every twenty to forty years and taking more than one hundred million lives through the last outbreak in 1665.
In the 1700’s the world faced Cholera and lost hundreds of thousands of people before the Spanish Influenza began its reign of terror with the end of the first World War in 1918. Spanish Influenza traveled the world, shutting down schools, theatres, and businesses and killing more U.S. Soldiers than had died during the first world-wide European campaign. An estimated fifty million people died during this pandemic which lasted only one year.
We, as a world, are now facing another Pandemic, though with the hope of a far less catastrophic outcome.
However, for what may be the very first time, people are “using” a world-wide epidemic to take advantage of the system and to misbehave. As restaurants, businesses and schools close their doors, courthouses continue hearings and trials, and lawyers work from home, parents have begun to take advantage of the situation and started to ignore Court Orders and doing what it inherently right by their children..
Over the last couple of weeks I have received multiple calls from clients and other local attorneys seeking advice on how to handle what appears to be an absolute break-down in the ever-aspirational co-parenting etiquette between parents trying to raise a child together after the failure of their own relationship.
As spring breaks have been “extended” by schools in the upheaval caused by concern over COVID-19, the parent with whom children were scheduled to spend the entirety of their spring breaks have wielded the language of their parenting plans as a weapon to delay a return to the other parent by claiming strict adherence (perhaps for the first time) to the Court’s order that they have the child for the entirety of the vacation.
Parents whose former partner works in the health care industry or as first responders have reverted to insincere claims of the “best interests” of the child when unilaterally denying timesharing in the home of a parent whom they claim may have been exposed to the virus.
Parents who are now working from home with younger children have demanded additional child support to help pay for the cost of in-home care while schools are closed and then have used the anticipated refusal to deny timesharing, directly in opposition to Florida Statutes §61.13(4)(a)
Many parents have even turned the tables and refused to exercise visitation with their children due to inflated claims of concern over a possible transfer of the infection.
Obviously most of the parents who are in these situations are not dealing with a difficult former partner for the first time, just as those parents who have consistently placed their children before themselves have continued working together through this time of uncertainly and concern and have not resorted to playing games of deprivation with their children becoming the ultimate pawns.
However, in this challenging time of world-wide panic and anxiety, parents should strive to work even harder to co-parent their children and do what is in their child’s legitimate best interests, putting aside any thoughts of what they can “get away with,” or how they can best torment the person with whom they created another life.
I once read an article about children dealing with the effects of a natural disaster and while COVID-19 cannot be termed as such, I know of no better synonym for a world-wide Pandemic than likening it to an unexpected natural disaster. The article, Impacts of Natural Disasters on Children was written by Carolyn Kousky and she wrote that, “disasters can cause mental health problems. Not only are disasters themselves stressful and frightening, but children can suffer psychological harm from […] seeing parents or caregivers undergo stress; from neglect and abuse; and from breakdowns in social networks, neighborhoods, and local economies. […] Disasters can interrupt children’s education by displacing families, destroying schools, and pushing children into the labor force to help their families make ends meet in straitened times. www.futureofchildren.org Vol. 26/No. 1/Spring 2016.
I often tell my clients that the parent who speaks poorly of the other is usually the parent whom the child ends up resenting and I will reiterate that here but extend that warning to parents who unilaterally and unnecessarily prevent their children from spending their scheduled time with their other parent during this time of overwhelming stress and anxiety. In taking this path, that parent not only violates a Court Order, but also makes what can only be termed as an unilateral temporary modification to a parenting plan.
Florida Statutes §61.13(c)(1) states that, ”It is the public policy of this state that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys, of childrearing.” It is the right of no parent under the laws of this state to prevent or prohibit a child’s natural and ongoing relationship with the other parent, without due cause, based on an inflated sense of entitlement or a desire to “win.” This power resides ultimately with our Courts.
In order for the Court to modify a parenting plan, section 61.13(2)(c) of the Florida Statutes provides as follows: “The court shall determine all matters relating to parenting and time-sharing of each minor child of the parties in accordance with the best interests of the child and in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act, except that modification of a parenting plan and time-sharing schedule requires a showing of a substantial, material, and unanticipated change of circumstances.” Additionally, section 61.13(2)(c) of the Florida Statutes goes on to state; “A determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child. Determination of the best interests of the child shall be made by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family, […].”
Accordingly, in order to obtain even a temporary modification of custody, the moving party must establish (1) that there has been a substantial change in the condition of one or both parties, and (2) that the change in custody serves the best interests of the child. Wilson v. Roseberry, 669 So.2d 1152, 1154 (Fla. 5th DCA 1996). Furthermore, the substantial change must be one that was not reasonably contemplated at the time of the original judgment. Cooper v. Gress, 854 So.2d 262, 265 (Fla. 1st DCA 2003). This rule promotes the finality of the judicial determination of the custody of children. Wade v. Hirschman, 903 So.2d 928, 932 (Fla.2005).
By unilaterally denying timesharing, a parent is stepping into the role of the trial Court but more importantly, the offending parent is in direct contravention to Florida Statutes and may have to face the wrath of the Court for advantages taken which could irreparably harm their own child.
Florida Statutes §61.13 (4)(c), clearly outlines that;
“When a parent refuses to honor the time-sharing schedule in the parenting plan without proper cause, the court:
1. Shall, […]award the parent denied time a sufficient amount of extra time-sharing to compensate for the time-sharing missed, and such time-sharing shall be ordered as expeditiously as possible […], the court shall schedule such time-sharing […] that is convenient for the nonoffending parent and at the expense of the noncompliant parent.
2. May order the parent […] to pay reasonable court costs and attorney’s fees incurred by the nonoffending parent […].
3. May order the parent […] to attend a parenting course approved by the judicial circuit.
4. May order the parent […] to do community service […].
5. May order the parent […] to have the financial burden of promoting frequent and continuing contact […].
6. May, upon the request of the parent who did not violate the time-sharing schedule, modify the parenting plan if modification is in the best interests of the child. (emphasis added)
7. May impose any other reasonable sanction as a result of noncompliance.
Is denying Court-ordered timesharing to the other parent really worth the potential downsides that may come with the denial of awarded timesharing? i.) make-up timesharing to the other parent; ii.) payment of the other parent’s attorney’s fees; iii.) community service or a court-imposed parenting course – not to mention iv.) the ultimate punitive proverbial slap on the wrist which is a Court-approved modification to the parenting plan in the non-offending parent’s favor.
Most certainly, the parent who chooses to take this path now, during this terrifying time of self-imposed isolation, social distancing and world-wide economic impact, will be able to “get away with it.” But only for a time. I strongly suspect that with the Court’s inundation of Motions for Contempt and Enforcement following its return to normalcy, Courts will feel compelled to establish a new precedence which is thus far thread-bare and I suspect that Courts will make an example of those parents who chose to use a world-wide pandemic to further harm their child.
Make no mistake about it, it is not in any child’s best interests to be denied time with a caring and concerned parent in a time of great stress and anxiety without a tangible and sincere threat or concern.