Dr. Robert Gardner and his wife were divorced in 1983. Following the final judgment, Mrs. Gardner moved herself and the two teenaged children to New York without court permission or consent of Dr. Gardner. The final judgment provided that Dr. Gardner would have the right to visit with the children “not less than eighty-five days per year . . . .” Unfortunately, he never was able to see them. Mrs. Gardner remained neutral about visitation. She took the position that visitation arrangements were between her ex husband and the children. Since the children were resistant to visiting with their father, she washed her hands of the situation.
The Gardner Decision
In the first of several significant decisions from the district courts of appeal and the Florida Supreme Court, the Fourth District held that Mrs. Gardner “misconstrues the extent of her responsibility. The custodial parent may not merely remain neutral with regard to visitation, but has an affirmative obligation to the noncustodial parent ‘to encourage and nurture the parent-child relationship.’”
Unfortunately, by the time the district court reviewed the matter, the parties’ oldest child had already reached his majority. The Court went further to hold that Mrs. Gardner “cannot bring herself into compliance with the final judgment merely by taking no action with regard to visitation, but rather has an obligation to encourage the parties’ minor daughter to visit the husband and to take steps to ensure that the daughter will do so. Until the wife does this, she is barred from seeking the court’s aid in collecting alimony arrearages, in continuation of alimony payments, or in holding the husband in contempt for nonpayment.”
The Fourth District continued the holding of the Florida Supreme Court from 1946 that “a divorced wife who refuse[s] to permit her child to visit its father, as provided by the decree of divorce, [is] not entitled to the aid of a court of equity in collecting alimony until compliance with the decree.” However, the Fourth District went further in Gardner to prevent the Wife from seeking enforcement of the child support obligation with respect to the remaining child so long as she remained noncompliant with the final judgment on visitation.
The Fourth District crafted a punitive means of obtaining compliance with the visitation provisions of the final judgment. It refused to bar enforcement of child support arrearages for the older child, who had already reached his majority, since Dr. Gardner was no longer seeking visitation from him. But with respect to visitation with his younger daughter, the Wife’s failure to actively insure that visitation occurred resulted in a cut off of all monetary benefits from the Husband until such time as the Former Wife petitioned the trial court for relief after she complied with the final judgment.
The Schutz decision in the DCA and Florida Supreme Court
Two years later, the Third District Court of Appeal cited Gardner as authority in extending the obligations of the custodial parent with respect to the children and the former spouse in the case of Schutz v. Schutz. The Third District used language such as “children are entitled to a warm and loving affinity with both their parents” and “a custodian . . . has an ‘affirmative obligation’ to encourage and nurture the relationship between the children and the non-custodial parent,” quoting Gardner. Comparing the mother’s refusal to affirmatively encourage the relationship between the children and the other parent to falsely shout fire in a crowded theater, the lower court overruled the First Amendment claims of the mother that her rights were being violated in being required to raise her daughters’ opinion of their father to one which she did not hold. Although the example may be one in the extreme, the opinion served as the basis of future decisions that raised the right to a warm and loving affinity between parent and child to a constitutional level.
Two months after Schutz, the Third District continued its assault upon restrictions to a parent’s contact with his or her children in Esteban v. Estaban , where forfeiture provisions of visitation in the event the father was 15 minutes late to pick up the children were stricken as “an unnecessarily arbitrary and unjustified interference with the rights of the father and the child to each other’s company.” The progression of these “rights” towards a constitutional plateau continued.
Schutz v. Schutz eventually made it to the Florida Supreme Court, primarily on the First Amendment violation claim by Mrs. Schutz, not on conflict jurisdiction. Not only did the Supreme Court affirm the 3rd DCA’s decision, it went into great detail to inform the state that a new day had arrived in Florida with respect to the obligations of custodial parents. The affirmative obligation to encourage and nurture the relationship between the child and the noncustodial parent was clarified: “This duty is owed to both the noncustodial parent and the child. This obligation may be met by encouraging the child to interact with the noncustodial parent, taking good faith measures to ensure that the child visit and otherwise have frequent and continuing contact with the noncustodial parent and refraining from doing anything likely to undermine the relationship naturally fostered by such interaction.” In dismissing the First Amendment claims of the mother, the Supreme Court merely said: “any burden on the mother’s first amendment rights is merely ‘incidental’”.
The Supreme Court continued its expansion of noncustodial parental rights by complimenting the district court’s attempt to restore a meaningful relationship between the children and their father by “assuring them unhampered, frequent and continuing contact with him.” The Court went further to say that “it is the public policy of this state to assure a minor child frequent and continuing contact with both parents after marriage has been dissolved.” Most significant was the Supreme Court’s finding: “In resolving the matter, the [district] court also properly considered the father’s constitutionally protected ‘inherent right’ to a meaningful relationship with his children.” Nowhere in the majority opinion of the Third District is this constitutional right found, but the Supreme Court elevated it to this status in its opinion. As such, the Florida Supreme Court actually found this constitutional right to be more important than the First Amendment rights asserted by the Wife.
Establishment of the Constitutional Rights of Parents
The Fifth District weighed in on the issue in 1994 in the case of McAlister v. Shaver. Quoting the Supreme Court in Schutz, the court recognized: “A parent has a constitutionally protected ‘inherent right to a meaningful relationship with his children.’” “The only limitation to this rule of parental privilege is that between parent and child, the ultimate welfare of the child must be controlling. Visitation with a child should never be denied as long as the visiting parent conducts himself or herself, while in the presence of the child, in a manner which will not adversely affect the child’s morals or welfare.” The Court went on to add that “extreme circumstances” or adverse affects on the welfare of the child would only be the reasons to deny reasonable visitation.
In 1995, the Second District determined that Gardner was no longer authority to suspend alimony in the absence of visitation since the passage of Florida Statute 61.13(4) which prohibits withholding of support or alimony when a custodial parent refuses to honor a noncustodial parent’s visitation rights. The Second District reversed the trial court’s order suspending the payment of rehabilitative alimony and barring the mother’s access to the court for enforcement under this authority. Without this ability to enforce visitation provisions, it appeared that the tide was shifting back to a time when visitation rights could not be enforced by a non-custodial parent. However, in 1998, the Second District did weigh in on the issue of visitation by overturning a lower court’s revision of a visitation schedule after one party had moved out of state. The Second District quoted the mandatory language in Schutz in deciding that the move to North Carolina should not be used to limit the non-custodial parent’s contact with the children.
The Third District, in 2003, reiterated the intent that visitation provisions for a non-custodial parent were to be enforced, this time by a finding of contempt of court. The Court repeated the language of Schutz in describing the nature of the obligation of the custodial parent. The Court also took to heart the language of the settlement agreement between the parties, elevating it to an affirmative obligation. “The settlement agreement provides that each parent shall encourage and foster the maximum relations, love and affection between the minor children and the other parent; shall not obstruct or interfere with the other parents right to companionship with the minor children; and shall discuss and work together in an effort to reach a joint decision on all major decisions involving the children.” The former wife’s failure to do this led to the finding of contempt of court that was affirmed.
Further Expansion of Parental Rights and Statutory Changes
In recent years, the Fourth District has taken the obligation of the custodial parent another step further. It has first reminded parents that “when it is their time with the children it is their time with the children; that is not an option, it is an obligation.” “Even though the children express a desire to be with one parent over the other, that parent must insist that the child go see the other party. If necessary, the parties must close the door to their own home to the children and require them to visit the other party.”
The Fourth District expanded the obligations of the custodial parents even further. It began by first recognizing the legislature’s decree in Florida Statute 61.13(2)(b)1 (2006): “. . . the public policy of this state to assure that each minor child has frequent and continuing contact with both parents after the parties separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys, of childrearing.”
The Court recognized that overnight visitation is a “very important” component of a non-custodial parent’s visitation rights. As such, the Fourth District held that “It should be awarded, absent some overriding concern for the child’s safety.” By example, the Court held that “Unless a twelve-year old child suffers from some special physical or mental disability, we see no reason why he or she cannot spend four nights a month sleeping on a couch, rollaway bed, or even a padded mat or sleeping bag in an area not designated as a separate bedroom, if the non-custodial parent’s economic circumstances so dictate.” The Court also found that visitation necessarily includes rotating holidays and if they are not awarded, there must be written factual findings justifying their absence.
The 2008 changes to the shared parenting statutes have attempted to codify the progression of visitation rights for parents. This article will not attempt to outline all the changes of the law, but will point out some matters previously contained in statutes and some that are not. “Time sharing”, as it is now called, rather than custody, is to be established, taking into account a larger number of factors than previously listed in Florida Statute 61.13(2)(B)(2)(b)(3) to be considered by the court, all with the intention of addressing the best interest of the child. Failure to honor time sharing schedules cannot serve as a basis to withhold child support or alimony. It can carry with it statutory sanctions, such as award of the denied time in a sufficient amount of extra time sharing to compensate for the time-sharing missed , court costs and attorney’s fees , attendance at a parenting course , community service , financial burden of promoting frequent and continuing contact when the parent and child reside further than 60 miles from the other parent , modification of the shared parenting plan , and contempt .
The progression of the rights of children and parents to share each other’s time has served to vastly improve the lot of mostly fathers, who complained for years that the courts favored mothers. I recall Dr. Gardner’s frustration with a system that permitted his ex wife to continually take his money to support children he was never able to see. If he ever reads this article, I hope he understands the significance of his persistence. Although the changes came too late to preserve his relationship with his children, it has certainly helped others.