Shared Parenting-The Devil is in the Details

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Mary A. Cosmo, Esq. 239-851-4982

By Mary A. Cosmo, Esquire, Family Law Attorney ©, The enforceability of shared parental responsibility and contempt. ©

Time and again, I will meet with a prospective client who wants to hold the other parent in contempt for refusing to comply with their parenting plan because they cannot get the other parent to comply. Then, they tell me it’s the parenting responsibility part of their parenting plan that they are the most frustrated with because they cannot get the other parent to communicate about the child’s needs, doctor’s appointments, school events, or mental health issues.  Unfortunately, I am the bearer of bad news as I explain to them why contempt is not going to help them because their parenting plan responsibility merely tracks the statute’s wording.

“It is well established that a party cannot be sanctioned for contempt for violating a court directive or order which is not clear and definite as to how a party is to comply with the court’s command.[1]  For that reason, when a final judgment or order is not sufficiently explicit or precise to put the party on notice of what the party may or may not do, it cannot support a conclusion that the party willfully or wantonly violated that order.”[2]  Moreover, because a finding of contempt must be based upon a violation of the clear terms of a court order, a provision which is merely inherent of a court’s order will not support a finding of contempt.[3]  While acts may have violated the ‘spirit’ or ‘intent’ of the court’s orders, a finding of contempt requires the violation of the letter of the order—not its spirit.  [4]   Cancino v. Cancino (Fla. App., 2019)

Shared parental responsibility is a “court-ordered relationship,”[5] and the requirements of that relationship must be stated explicitly to support a finding of contempt on the basis of a party’s willful refusal to follow.  The law also imposes upon the court (and those writing the agreements to be adopted by the court) the requirement to be explicit and precise in its commands if strict compliance is to be exacted in the form of a contempt sanction.[6]   Therefore, a vague provision that the parties “shall share parental responsibility for the children consistent with Florida Statute” fails to set forth a sufficiently precise command so as to “put the parties on notice of what they may or may not do.”[7]

We as attorneys and the Court should and can do better for our clients.  The majority of parenting plans that come across my desk focus on a detailed timesharing schedule. Typically, at the time of drafting the parties are more concerned with the child’s time or whose house they will be at. However, we seem to be blowing it big time when it comes to the most fundamental right of them all, the right to parent.  For the most part, the parenting responsibility clause or section is limited to a paragraph, which has no teeth for enforcement.  No enforceability is a major problem.

With a boilerplate clause that tracks the statute for parenting responsibility,[8] one thing is for certain, that filing for contempt will reassure the offending parent’s bad behavior is not contemptible and they are free to continue their bad behavior.   Parental responsibility in Florida is just as important as the timesharing part in the parenting plan, whereas boiler point language is not enough to make sure the other parent will comply.

It is important to discuss with your client the meaning and expectations of parenting responsibility and put clear and precise terms so that the parents know how to govern their relationship.  The Florida Legislature describes parental responsibilities through its public policy statement, “to encourage parents to share the rights and responsibilities, and joys, of childrearing.”[9]  However, it is up to the drafter to craft further defined expectations that are meaningful and can be enforced when noncompliance arises. It is especially important to articulate in a parenting plan how to “confer and jointly make decisions” when the parents already have a difficult time communicating with each other.

 

[1] Ross Dress for Less Va., Inc. v. Castro, 134 So. 3d 511, 523 (Fla. 3d DCA 2014); accord Smith v. State, 954 So. 2d 1191, 1194 (Fla. 3d DCA 2007) (“When a finding of contempt is based upon a violation of a court order, that order must be one which clearly and definitely makes the person aware of its command.”); Kranis v. Kranis, 313 So. 2d 135, 139 (Fla. 3d DCA 1975).

[2] Keitel v. Keitel, 716 So. 2d 842, 844 (Fla. 4th DCA 1998).

[3] Id. at 844 (“[I]mplied or inherent provisions of a final judgment cannot serve as a basis for an order of contempt.”); see Wilcoxon v Moller, 132 So. 3d at 283 at 287 (A court cannot base contempt upon noncompliance with something an order does not say, and we will not read implications into an order to justify contempt).

[4] Reder v. Miller, 102 So. 3d 742, 744 (Fla. 2d DCA 2012).

[5] Section 61.046(17), Florida Statute.

[6] See Cooley v Moody, 884 So. 2d 144 at 145.

[7] Cancino v. Cancino (Fla. App., 2019).

[8] “It is in the best interests of the child(ren) that the parents confer and jointly make all major decisions affecting the welfare of the child(ren). Major decisions include, but are not limited to, decisions about the child(ren)’s education, healthcare, and other responsibilities unique to this family. Either parent may consent to mental health treatment for the child(ren).”

[9] Section 60.13 (2)(c)1, Florida Statute.