February 1, 2013 ·
By: Michael H. Gora
Q: My former wife and I have one child, a son now five years of age. When we were divorced two years ago we entered into a Parenting Plan which called for me to have typical access rights to pour son, alternating weekends with four over nights each weekend. In the original case she had counsel and I did not.
During the first few months after our agreement and the entry of the final judgment incorporating that agreement, and others, my former wife announced that our son was not yet ready to have overnights with me because of the disruption of our marriage and various illnesses that she claimed he suffered.
Ultimately she just refused to allow me to have any overnights with my son, and I have had none. To be clear, there have been no accusations what-so-ever against my ability to take care of our son during overnights.
I know that I have some paths through the legal system to correct this breach of our parenting agreement but I have tried to avoid conflict and save expenses. I have decided to take the bull by the horns and try to enforce my rights. What is my next step? What remedies are available to me?
A: There are at least two remedies which are open to you. You can file a motion for contempt against your former wife for having violated the Final Judgment of Dissolution of marriage, because that incorporated your parenting plan. This would ultimately get you a court order holding you former wife in contempt of court by her frequent violation of the final judgment and parenting Plan.
The court’s order would come accompanied by a strong verbal admonition in open court and a threat that if she continued to deny you access to your son she could be put in jail for contempt, either civil or criminal.
Her past performance can also provide you grounds to file a Petition for Modification of the parenting plan asking the judge to provide you with the lion’s share of the overnights and your former wife with the alternate weekends.
Grounds for a modification require a material change of circumstances which appear to be permanent, and were not voluntary on your part. Florida appellate decisions would allow the court to find that her unilateral change in the parenting provisions in your Parenting Plan and Final judgment meet the criteria.
This second road is more complex than the first; a change in the parenting arrangement carries with it a re-calculation in your child support obligations because of the shift of overnights to you from your former wife. New financial affidavits would have to be filed and some financial discovery accomplished to verify your respective incomes.
In order for you to be successful in either or both of the remedies you will have to be represented by experienced counsel.
Michael H. Gora has been certified by the Board of Specialization and Education of The Florida Bar as a specialist in family and matrimonial law, and is a partner with Shapiro Blasi Wasserman & Gora P.A. in Boca Raton. Gora can be reached at email@example.com. and at (561) 477-780.
By Online Staff