It is hard to overstate the importance of a court's decision-making process when it comes to visitation and time-sharing arrangements. Florida law is emphatic that courts—and only courts—be the determiners of how
visitation is to take place.
Although this may seem like an obvious and straightforward principle, the authority of the courts in this arena is constantly tested, forcing a tug-of-war between trial courts (which sometimes agree to give up some measure of their power) and appeals court (which are forced to return these decisions to the hands of the courts).
Florida Courts Struggle with Their Own Authority
The 2006 case of Shugar
v. Shugar sums up the position of Florida law:
"Florida Statutes set[] forth the trial court's obligations when determining custody and visitation matters. Section 61.13(2)(a), provides that "[t]he
court shall have jurisdiction to determine custody"; subsection (2)(b)(1) requires "[t]he court [to] determine all matters relating to custody of each minor child of the parties in accordance with the best interests of the child"; and subsection (2)(b)(2.b) directs "[t]he court" to determine visitation rights of a parent when it has ordered sole parental responsibility to the other parent."
The appeals court in Shugar was faced with a lower court that had ordered that visitation decisions be made by the child's guardian ad litem. Even though the guardian was appointed to look after the child's best interests, the appeals court reversed, quoting the above statutes and emphasizing the focus those statutes place on the courts' need to make these decisions.
In another recent case, Schwieterman
v. Schwieterman, the trial court had agreed to an even more unique delegation of its authority: it decreed that, in the event of visitation disputes between the divorcing couple, the ex-husband's parents could make the final decision. The trial court also gave the grandparents additional authority, such as being provided notice whenever the child had a scheduled medical appointment.
Obviously, as conceived by Florida law, this decision ran against the trial court's non-transferable power; and the appeals court reversed.
Indeed, the court's power cannot even—or, said differently, cannot especially—be delegated to one of the parents. In
Grigsby
v. Grigsby, for example, a mother's visitation rights had been suspended until such time as her conduct showed she was prepared to reestablish contact with the children. The trial court, then, gave the father "with input from professionals" the ability to make that determination. In reversing, the appeals court said that, first, the trial court itself had to set forth what the mother needed to do before her rights could be returned and, second, the court had to make the decision as to when the mother was sufficiently rehabilitated.
The appeals court explicitly stated that it did not matter how strongly the trial court believed in the father's ability to properly make this determination. It did not matter how "well-intentioned" or "trustworthy" he was. It was the court's decision to make, and the court's alone.
Contact a South Florida Child Custody Attorney to Help with Modification
If you need help with achild custody or
visitation or have any other
family law-related inquiries, please reach out to our legal professionals at
Hager, Schwartz & Ross, P.A. in Miami today.