Visitation

1. Visitation Deciding and Modifying

2. The extent of the right to visitation • There is a constitutionally protected "inherent right to a meaningful relationship" between parent and child. Schutz v. Schutz, 581 So. 2d 1290 (Fla.1991)

3. Right to visit not connected with nor dependent on child support compliance • Fla. Stat. § 61.13(4): • 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.

4. General Rule for Determining Visitation • Best interests of child is overriding concern • Generally incorporates by reference the statutory custody “best interests” factors

5. “Standard” visitation? • 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).

6. Restrictions on Court Discretion • 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 • 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

7. Supervised Visitation • 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).

8. Visitation for Prison Inmates • 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).

9. Make Up Visitation if There is a Denial of Contact • Fla. Stat.6 61.13(4): If visitation is denied without good cause, the court shallaward makeup visitation in a manner consistent with the best interests of the child and the convenience of the non-custodial parent

10. Other Make Up Provisions • In addition, the court may: • 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.

11. What if child refuses? • 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).

12. Modification of Visitation • 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)

13. Grandparent Visitation • 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

14. Does Troxel mandate a “harm” standard? • 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

15. States are revising statutes to avoid constitutional problems • 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.