Double Edged Sword: When a Parent Withholds Time-Sharing

Emotions almost always run high during a divorce or other family law action, especially when child custody is involved. Florida has two elements that make up custody: Parental Responsibility and Time-Sharing. Time-sharing means how many overnights each parent has with the minor children. Recent law changes in Florida mean that the court now starts with the presumption that equal time-sharing is in the best interests of the child. In order to overcome the presumption of “fifty-fifty” a parent must show by a preponderance of the evidence that an equal time-sharing plan would not be in the child’s best interest. But what if there is no court ordered time-sharing in place yet? Can one parent unilaterally withhold a child from the other? Can doing so backfire?

When no time-sharing order exists, typically both parents have equal rights to the child and may both spend time with the child, even if the child is living primarily in the marital home with one parent. While this sounds simple in theory, it often leads to complex and messy situations if both parents are not willing to co-parent pending a formal order. Until a formal order is entered, there is no clear benchmark for who makes decisions, when and where children should be on each day, or what to do if parents disagree. This often leads to one parent withholding the child from the other, sometimes out of retaliation, confusion, or fear. In reality, often one parent has been the primary caretaker and day-to-day decision maker and may, by default, end up making unilateral decisions for the children while the case is pending. Courts often view withholding a child from the other parent as problematic and potentially harmful.

In some circumstances, for instance where there are immediate concerns for a child’s safety, temporary withholding might be defensible. However the actions should be followed by prompt formal legal action. If the witholding is simply based on personal conflict or retaliation by a parent it will likely not be excused by the court. Under Florida’s best interest factors, maintaining ongoing contact with both parents is a priority, absent any serious safety concerns, any interference with that could backfire, leading to various consequences, including:

• Court ordered make-up time

• Loss of credibility in future proceedings

• Court-ordered parenting education

• Court ordered therapy

• Denial of shared parental responsibility

• Potential loss of timesharing on a permanent basis by the withholding parent

Withholding time-sharing is a double edged sword and it is recommended you seek the guidance of an attorney before making a decision to unilaterally withhold time. Obtaining a temporary time-sharing order while your case is pending can protect both parents and offer consistency and stability for the child. Once a formal time-sharing order is entered, both parents have the ability to enforce the order should conflict arise.

What Can I do if the Other Parent is Withholding Our Child?

If the other parent is preventing you from time-sharing, there are several protections available under Florida Law, including:

• Enforcement of an existing parenting plan

• Contempt

• Request for make-up time-sharing

• Petition to establish a permanent or temporary time-sharing plan

• Petition to modify

In the meantime it is important to document all missed time-sharing exchanges, text messages, voicemails or e-mails denying time-sharing, all notes on your attempts to exercise time-sharing, and any other relevant potential evidence.

Having the guidance of counsel is important when it comes to child custody. Your attorney can help you get your message across to the judge, present crucial evidence, negotiate on your behalf and prevent mistakes in judgment while awaiting an order. If you are dealing with the other parent withholding time-sharing from you or if you believe withholding may be necessary, it is important to speak with an attorney right away. Contact Cody Law to discuss your individual situation and see if a legal remedy is available to you.