After Ms. McCready’s hearing in Arkansas this week, WINK News Now returned to Martin Law Firm to further explain the legal implications involved with this case.  Attorney Steven Martin explained that Florida, which is the “home state,” would likely ultimately determine this matter.  However, the Arkansas Judge might delay the return of the child to Florida to investigate, if for example, there were allegations of abuse.

Ultimately this entire ordeal will likely be considered in determining the final custody arrangement within the entire scheme of the best interests of the child.  Attorney Martin speculates that while Ms. McCready may have won a small battle but that ultimately her tactics will not sway the case in her favor.

To see the WINK News story follow the following link where you will be connected directly to WINK News Now’s website: http://www.winknews.com/Local-Florida/2011-12-07/Experts-say-Mindy-McCready-will-have-trouble-getting-custody

Steven E. Martin’s practice focuses on family law, civil litigation, business planning, estate planning and real property law. Mr. Martin is a Past President of the Cape Coral Bar Association and is an active member of the Lee County Bar Association. Mr. Martin is a member of the Florida Bar’s Judicial Administration and Evaluation Committee, and the Calusa Chapter of the American Inns of Court. Mr. Martin is admitted to practice in the state of Florida and in the Federal Court for the Middle District of Florida. Mr. Martin practices in Lee County Florida in Cape Coral and Fort Myers, Florida and in Collier County Florida in Naples.

WINK News Now asked Martin Law Firm attorney Dustin Butler to explain issues regarding child custody matters to local viewers.  Specifically, Mr. Butler explained what a “pick-up” order means.  “A pick-up order is essentially the court ordering law enforcement to bring a child back to this jurisdiction.  To issue a pick-up order the court needed to have already made a time-sharing or custody determination.”

Mr. Butler went on to explain that the overriding priority for Florida courts is the “best interests” of the child.  The court will consider what is in the best interests of the child above all other concerns.  When asked to explain how the court would view a parent who violated a court order resulting in a pickup order Mr. Butler was quoted saying “we’re dealing with parents not behaving properly and the court will consider that within the grand scheme of what is in the best interests of the child.” 

To see the WINK News story follow the following link where you will be connected directly to WINK News Now’s website:

http://www.winknews.com/Local-Florida/2011-12-02/Missing-persons-flyer-issued-for-Zander-McCready

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.

Time-sharing is a very delicate subject and obviously of the utmost importance to both parents and the child.  It is very important that attorneys, judges, and the parties take this subject very seriously.  Florida law places the priority on the “best interests” of the child.  Specifically,

The best interests of the child are always the paramount concern in child custody and time-sharing matter.”

For this reason when one parent refuses to comply with time-sharing, while the aggrieved parent’s interest will absolutely be a consideration, the best interests of the child will still be the priority. Thus the Court must always make findings that their orders are in the best interest of the children.

However, there are several sanctions the Court can impose.  First the Court can always order the offending party to pay the other spouse’s attorney’s fees and costs in enforcing the time-sharing.  Second, the Court may

after calculating the amount of time-sharing improperly denied, award the parent denied time a sufficient amount of extra time-sharing to compensate for the time-sharing missed, and such time-sharing shall be ordered as expeditiously as possible in a manner consistent with the best interest of the child and schedule such tune-sharing in a manner that is convenient for the parent deprived of time-sharing.”

This remedy requires the careful balancing of awarding necessary make up time-sharing while doing so in a manner which is in the best interests of the child.  For example, it may be inappropriate for the Court to order an immediate full custody change in the middle of the school year.  However, if it is in the best interest of the child, this is a remedy which the Court may impose.

Finally the Court can find criminal contempt and impose a sanction of incarceration.  In a recent case the Court ordered five (5) days incarceration for the willful disregard for the Court’s time-sharing order.

Even in an unpleasant divorce it is crucial that both parents maintain the goal of achieving what is in the best interest of their child. 

See, Cheek v. Hesik, 36 Fla. L. Weekly D2378 (Fla. 1st 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.

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.