Yes, the Court may change the primary residential parent based on a refusal to comply with the Court ordered time-sharing. Florida Statute § 61.13 provides that the trial court “[m]ay upon the request of the parent who did not violate the time-sharing schedule, modify the parenting plan if modification is in the best interest of the child.” Fla. Stat. 61.13(4)(c)(6) (2010).

However, procedure is everything in the law.  Specifically, the trial court CANNOT change the primary residential parent based on contempt of court. In a recent case the trial court attempted to change the primary residential parent as a contempt of court proceeding.  There were many issues with the trial court’s ruling, first the trial court did not allow the Father to be heard in the proceedings.  Second, the Mother did not even ask for the primary residential parent to be changed.  Most important though, the trial court did not find it would be in the best interests of the children to make this change.

Therefore, if you are having trouble with a time-sharing agreement it is important to seek modification through the proper channels.  The court may award make up time-sharing for failure to comply with the court order time-sharing agreement; but it may not change the primary residential parent under a contempt charge. 

See Hunter v. Hunter, 65 So. 3d 1213 (Fla. 2d DCA 2011) (Hunter I); See also, Hunter v. Hunter, 36 Fla. L. Weekly D2274 (Fla. 2d DCA 2011).

Dustin Michael Butler is an Attorney with Martin Law Firm, P.L., whose practice focuses in Family Law and Civil Litigation.  He is admitted to practice law in the State of Florida and the Federal Court for the Middle District of Florida. He primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.