Frequently Asked Questions about Visitation Rights in a Florida Divorce

Florida Visitation

T
here are no reported cases of a court honoring complete denial of visitation for a parent. Even in cases of abuse, the only reported cases have upheld supervised visitation. Supervised visitation is when the parent is only allowed to visit with the child in the company of another person. This person is usually a friend or relative that the two parents agree will be allowed to act as a chaperon. Supervised visitation often calls for a restriction of visitation to a particular location and time.

Grandparent Visitation Who can be awarded visitation? Obviously a biological parent can be awarded visitation. Additionally, grandparents (even when the parents weren't married or are not currently divorced) and stepparents may be awarded visitation rights. While there are no reported cases of brothers or sisters being given visitation, a strong argument could be made that it would be in the best interest of the child.

When can visitation be denied? The court has the power to deny visitation. Normally the court will only stop visitation for a certain time or until a certain task is performed. For example, the court has previously stayed visitation until the parent met their financial obligation. If your spouse should deny you court ordered visitation, you should file an action for contempt (Dom. Rel.3). Many parents feel they have the right to stop paying child support, but they are wrong. Withholding of child support will only get you in trouble and possibly arrested.

  

Parental Kidnapping

If the child is not returned within 48 hours, the visitation parent may have committed one of the following crimes:

  •    If the abducting parent remained within the state: misdemeanor� can be fined $25 or imprisoned for up to 30 days

  •    If the abducting parent crosses the state line: felony�can be fined $250 - $1000 and/or imprisoned 30 days to 1 year

If the other parent has actually stolen the child you should report this to your local police department immediately. The FBI can be called in to find the fugitive parent and the child as well. The only exception to this rule is when the child is in clear and present danger (the victim of abuse or abandonment) requiring the noncustodial parent to save them. The noncustodial parent must be ready to prove this clear and present danger and they are required by Maryland law to file a petition within 96 hours. In that event, both parents will need a lawyer.

Once an incident like this has happened, you may want to consider modifying the custody order. When a parent seeks to have the custody order Modification of Custody changed, it is his/her burden to show the court why

it should be changed. The court follows the old notion of �if it isn't broke don't fix it.� This is based on the idea that stability is best for the child unless you can show that there is something in the environment that will adversely impact on the well being of the child. This is not as simple as it may seem. The factor(s) in the environment have to not just make your home as good as the custodial parents, but better. To do this you must show that there has been a substantial change in circumstances and that it is in the child's best interests to make the change you are proposing. If the two homes are thought to be equal, then custody will stay as it is. Remember that a temporary or pendente lite custody order is not a final order. You would not be required to show a substantial change in circumstances to have custody changed in the �permanent� custody order.

A child at least 16 years of age can seek a change in custody on his/her own. However, it will be the minor's burden to prove that a change of custody would be in his/her best interests at this time.

The court that made the original custody and visitation order retains jurisdiction to decide modification unless the parties and child no longer have close ties to the court and the court surrenders its jurisdiction. However, the court with original jurisdiction may refuse to hear the custody case if a child has been wrongfully taken from another state or taken without the consent of the person entitled to custody. The children have been snatched, which is a crime. In response to this not infrequent occurrence, the federal government passed PKPA, the parental Kidnapping Prevention Act. It is used in two ways: to settle custody disputes between parents who reside in different states; and to offer a bit of relief in helping to locate the missing parent through the Parent Locator Service.

In addition to the federal government's PKPA, another law adopted by all 50 states is the Uniform Child Custody Jurisdiction ACT (UCCJA). Generally speaking, UCCJA is the better legislation but PKPA takes precedence because it is federal. A major difference between the two is that UCCJA can be enacted I foreign jurisdiction cases whereas PKPA is for domestic use only.

What both these statutes are supposed to do is assist in interstate custody disputes by returning the children to the proper custodial parent. Basically, both laws dictate jurisdiction rather than any major determination of custody. For example, The two statutes would assist the court in determining what state has jurisdiction, such as the child's current home state or the child's home state six months prior to the start of a custodial proceeding. The two statutes can be quite complicated and are definitely not to be tackled by yourself. A competent lawyer is a must in trying to work through these laws ands establish custody in interstate cases.

How do I obtain custody of my child?

Either one of the separated parents may petition a Custody circuit court in Florida for custody of a child. If  the parties cannot agree about who should have custody, the court will grant custody either solely to one of the parents or joint custody to both of the parents.

Where can I find information about missing children?

National Center for Missing and Exploited Children

2101 Wilson Boulevard, Suite 550

Arlington, VA 22201

Phone: 703-235-3900

Hotline: 1-800-843-5678

Can fathers obtain custody?

In Florida, fathers can gain custody of their children. The law no longer favors one parent over the other. The parent seeking custody must meet the same criteria: what is in the best interests of the child.

Can a child have input into a custody decision?

Courts will sometimes listen to the wishes of older children. Courts rarely take into account the wishes of very young children. Children who are 16 years or older may petition the court themselves for a change in custody.

What is supervised visitation?

Supervised visitation means that the non-custodial parent may not spend time alone with the child. It usually also means that the non-custodial parent may visit the child at a particular time and in a particular place.

When is do grandparents or other relatives have custody or visitation rights?

Generally, the natural parents will have a presumptive right to custody. Only in cases  where the parents are found to be unfit, or there are exceptional circumstances, will third parties be granted custody. At any time after a divorce, grandparents may petition the court for visitation rights.

What happens if the non-custodial parent refuse to return the child to the parent with custody?

If a child is under twelve years of age, it is unlawful to keep that child for more than 48 hours within the state of Maryland, or remove the child from the state of Maryland for more than 48 hours, after the lawful custodian has demanded the child's return.

Are visitation rights contingent on the payment of child support?

No. Visitation rights may not be denied to the non-custodial parent, even though the noncustodial  parent  is not   paying  child support.

How do I exercise my visitation rights, if the non-custodial parent is denying me access to my child?

You may seek a court order defining your visitation rights. Violation of this court order will result in the custodial parent being held in contempt of court.

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