Emergency/Temporary Timesharing Modification (Family Law Appellate Update)

FelixBaseman
FelixBaseman

Slaton v. Slaton (2d DCA)

A post-judgment timesharing case in which the mother, who had majority timesharing, was arrested for aggravated battery against her current paramour.  The father thereafter sought and received an order awarding him temporary residential custody of the children.  The order did not provide any timesharing to the mother.

The District Court affirmed that the trial court had the authority to temporarily modify timesharing because an emergency situation existed and because doing so was in the best interests of the children.

The District Court reversed the order in part, however, because if failed to specify “the steps necessary for the mother to regain residential custody.”  The Court explained that a trial court “may not modify primary residential custody based on a parent’s behavior without also identifying the steps that the parent must take to restore the original custody arrangement.”

The District Court also reversed the order because it failed to provide any timesharing whatsoever to the mother.  It noted that the order contained no support for the proposition that the mother should no contact with the children, adding that the “complete cessation of any and all timesharing is a harsh result that is rarely proper.”

The case is noteworthy for two reasons.

First, the District Court found that the trial court had emergency jurisdiction based solely on the fact that the mother was arrested and a DCF investigation was pending, despite the fact that there no threat of imminent harm to the children because they were in the father’s physical custody (in Louisiana) at the time.

Second, and most importantly, the District Court held that “a trial court may not modify primary residential custody based on a parent’s behavior without also identifying the steps that the parent must take to restore the original custody arrangement.”

In support of its holding, the Court cited two prior Second DCA cases, both of which hold only that when a trial court modifies an order to remove or severely restrict a parent’s timesharing, the court must explicitly set forth the steps that parent must take to regain “meaningful” timesharing.  See, e.g., Perez v. Fay, 160 So. 3d 459, 466 (Fla. 2d DCA 2015), reh’g denied (Apr. 6, 2015).

In contrast, Slaton suggests that any modification of primary custody (a concept which is generally considered to be no longer applicable under Florida law) must include a list of steps that the losing parent can take to regain the timesharing in the original parenting arrangement.  By its language, Slaton is not expressly limited to temporary or emergency modifications, although future opinions may—and likely should—limit its scope.