Transcript Visitation - Homestead

Visitation
Deciding and Modifying
The extent of the right to visitation
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There is a constitutionally protected
"inherent right to a meaningful relationship"
between parent and child. Schutz v. Schutz,
581 So. 2d 1290 (Fla.1991)
Right to visit not connected with nor
dependent on child support compliance
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Fla. Stat. § 61.13(4):
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A non-residential parent may not be denied
visitation because of a failure to pay child
support
A non-residential parent shall not withhold child
support or alimony because of the residential
parent's failure to honor visitation.
General Rule for Determining Visitation
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Best interests of child is overriding concern
Generally incorporates by reference the
statutory custody “best interests” factors
“Standard” visitation?
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Often consists of alternate weekends one evening or
overnight each week
Courts now recognize that each case is unique on its
own facts, so “standard’ orders are discouraged.
Owen v. Owen, 633 So. 2d 1156 (Fla. 5thDCA
1994); Wattles v. Wattles, 63 1 So. 2d 349 (Fla. 5th
DCA 1994).
Schedule should be age and developmentally
appropriate. Collins v. Collins, 737 So. 2d 1204
Fla. 5th DCA 1999).
Restrictions on Court Discretion
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Fla. Stat 661.13(6): The court may not deny shared
parental responsibility or visitation rights to a parent
infected with HIV, but may condition those rights in
order to prevent the spread of the disease
Fla. Stat.6 61.13(8): If the court orders shared
parental responsibility, the court may not deny the
non-custodial parent overnight visitation or access to
the child because of the age or sex of the child
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Custodial mothers have used breast feeding and other
bonding-type arguments to deny overnight visits with infants
and toddlers
General rule used by many mental health professionals is
one overnight away from primary residential parent for each
year of age
Supervised Visitation
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Court may restrict or limit visitation, if necessary to
protect the welfare of a child. Freeburg v. Freeburg,
596 So. 2d 794 (Fla. 4th DCA 1992).
Supervised visitation may be ordered after an
evidentiary hearing. Creach v. Creach, 516 So. 2d
1060 (Fla. 3d DCA 1987); Gavronsky v.
Gavronsky, 403 So. 2d 627 (Fla. 1st DCA 1981).
The custodial parent should not be the supervisor.
Fox v. Fox, 530 So. 2d 970 (Fla. 3d DCA 1988).
Visitation for Prison Inmates
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Prison inmates convicted of sexual battery, lewd and
lascivious conduct in the presence of a child, abuse
of children, aggravated child abuse, or sex act
against or in the presence of a minor under 16, are
not allowed visitation with children under the age of
18, unless the warden approves special visitation for
extenuating circumstances serving the interests of
the children
The provision and conditions for such visits are
solely within the province of the Department of
Corrections, not the courts. Moore v. Perez, 756
So. 2d 1086 (Fla. 5th DCA 2000); Singletaly v.
Carpenter, 705 So. 2d 110 (Fla. 2d DCA 1999).
Make Up Visitation if There is a Denial
of Contact
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Fla. Stat.6 61.13(4): If visitation is denied
without good cause, the court shall award
makeup visitation in a manner consistent
with the best interests of the child and the
convenience of the non-custodial parent
Other Make Up Provisions
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In addition, the court may:
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order the Primary Residential Parent to pay reasonable costs
and the attorney's fees incurred by the non-custodial parent to
enforce visitation;
order the Primary Residential Parent to attend a parenting
course.
order the Primary Residential Parent to do community service if
the order will not interfere with the welfare of the child;
order the Primary Residential Parent to bear the financial burden
of visitation when the Primary Residential Parent and child reside
further than 60 miles from the non-Primary Residential Parent.
order custody, rotating custody or primary residence to the
non-Primary Residential Parent upon his/her request, if the
award is in the child's best interest.
impose any other reasonable sanction.
What if child refuses?
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Primary residential parent has affirmative
duty to encourage child to attend visitation
ordered by court
But court cannot order children of parties to
comply with visitation order. Tomaso v.
Rivazfar, 701 So. 2d 407 (Fla. 1st DCA
1997).
Modification of Visitation
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Easier that custody modification
No requirement to show that a detriment
would occur to the child if the modification is
not ordered. Barrett v. Bawett, 862 So. 2d
100 (Fla. 2d DCA 2003)
Grandparent Visitation
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After Troxel v Granville, 530 U.S. 57, 147 L. Ed. 2d
49, 120 S. Ct. 2054 (2000), many state courts have
revisited and declared their grandparent visitation
statutes unconstitutional if primary standard was
best interests of child
Florida did so in Sullivan v Sapp, 866 So. 2d 28 (Fla
2004)
Many of these decisions hold that the state cannot
interfere with parental decision on who may visit
child absent a showing of harm to the child
Does Troxel mandate a “harm”
standard?
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Commentators disagree on this question
Most accurate reading of Troxel is that it
requires a heightened deference to parental
decision, but not clear if that deference
requires a showing of actual harm to the
child before the court can act and order
grandparent visitation
States are revising statutes to avoid
constitutional problems
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Court will presume that a fit parent's decision to deny
a grandparent visitation request does not create
harm to the child (mental, physical or emotional
health).
Grandparent must show that the parent's decision to
deny visitation to the grandparent creates harm,
either mental, physical, or to the emotional health of
the child.
If the court is convinced that the denial of visitation
creates or risks harm, the court will use a special set
of best interests factors in determining what amount
of grandparent visitation to order.