Fort Lauderdale Divorce Lawyer Blog
As a parent, one of your primary goals in life is the nurturing and protection of your children. When discovering that domestic violence has taken place in the home of your ex-spouse — and in full view of your children — you will probably feel spurred to take action. The law does allow the courts to make emergency changes to custody, timesharing, and visitation arrangements when situations like this occur. However, as one case from the Second District Court of Appeal shows, it is important to understand exactly what the courts can and cannot do for you when this sort of thing happens.
The parent taking action in this case was M.S. (father), who was divorced from his wife, L.S. (mother). The couple’s Washington divorce and custody judgment named the mother as the primary residential parent. The parents generally worked together cooperatively when it came to the children, including scheduling a two-month visit for the children with the father at his Louisiana home in the summer of 2015. While the children were in Louisiana with the father, authorities back in Pinellas County, Florida arrested both the mother and her boyfriend for battery on each other. These arrests brought to light the fact that the mother and the boyfriend (who intermittently lived with the mother and the children) had a history of domestic abuse, with the children having seen some of this domestic violence firsthand.
Upon learning this, the father refused to return the children to the mother. She went to court in Florida to enforce the Washington divorce and custody ruling. The father used this opportunity to seek temporary residential custody of the children. The trial court in Pinellas County agreed with the father, granting his request. As part of this decision, the mother received no visitation at all with the children.
The mother appealed to challenge the trial court’s decision, and she was partially successful. The appeals court firmly denied the mother’s appeal with regard to the trial court’s decision to grant temporary residential custody to the father on an emergency basis. When a bona fide emergency exists, the court can modify custody temporarily without even giving notice to the non-requesting parent. In this case, the mother’s home situation was precisely such an emergency. The evidence at trial showed that both the mother and the boyfriend had been charged with domestic violence and that the mother expressly asked the court for continued contact with the boyfriend, despite the boyfriend’s extensive history of abusing her. Additionally, the domestic violence situation was bad enough that the Florida Department of Children and Families had been involved multiple times, with previous investigations only ending upon the mother’s assertions that she’d cut off all contact with the same abusive boyfriend with whom she was now fighting to retain contact.
Even without the existence of an emergency, courts can modify custody and timesharing arrangements when a substantial change in circumstances occurs. The domestic violence taking place in the mother’s home and in front of the children was such a change in circumstances, so the court in this case could have modified the custody arrangement even if the father hadn’t proven that an emergency had taken place.
Where the wife was successful was when it came to the duration of the change of residential custody. The trial court in this case did not give the mother any avenue to regaining residential custody. The law gives trial judges discretion in custody matters, meaning that the judge in this case could have made the hurdle low or high for the mother to regain custody, but the judge had to provide her with some sort of avenue to “restore the original custody arrangement” and spell out what those steps were. The trial judge in this case mentioned counseling but did not clearly indicate what the mother had to demonstrate to her counselor, or to the court, in order to regain custody.
The mother was also successful with regard to timesharing. The order in this case provided no timesharing for the mother. The court explained that the “complete cessation of any and all timesharing is a harsh result that is rarely proper.” Regardless of how much timesharing the court awarded (if any at all), the law required the trial judge to explain why that was the appropriate outcome to meet the best interests of the children.
When you need to utilize the legal system to protect your children, the experienced South Florida child custody attorneys at Sandy T. Fox, P.A. are here to help. Our attorneys have many years of experience with all types of family law cases and are prepared to assist you with assessing your case and devising a plan for going forward. Contact our attorneys online or by calling (800) 596-0579 to schedule your confidential consultation.
More blog posts:
Florida Court Tosses Timesharing Plan Due to Absence of ‘Best Interests of the Child’ Finding, Fort Lauderdale Divorce Lawyer Blog, June 7, 2016
What it Takes to Seek a Timesharing Modification in Florida, Fort Lauderdale Divorce Lawyer Blog, May 27, 2016