Removing parenting restrictions in Florida divorce cases just got harder

To protect children in a divorce, a trial court sometime has to include parenting restrictions in the child custody order. Examples of protective restrictions are supervised visits, reductions in parenting time, counseling requirements, or requirements related to a parent’s substance abuse problem. Sometimes the restrictions are directly related to a parent’s problems or behavior, and sometimes the restrictions are related to a severely damaged parent-child relationship. In almost every case, the problem requiring the restriction must relate directly to the ability to safely parent the child. Put differently, even significant “problems” may not require restrictions if the problems do not impact parenting.

The Florida appellate courts disagree about what happens after restrictions are placed on a parent. The Third and Fourth District Courts of Appeal require the trial court to provide the restricted parent with a “road map” to have the restrictions lifted. These “road maps” are very fact dependent. For example a parent with a substance abuse problem might be required to get in-patient treatment, document consistent attendance at a 12 step program, and demonstrate no relapses for a period of time as proven through random drug tests.

Florida’s First and Fifth Circuit Courts of Appeal have ruled that Florida law does not allow the trial court to provide a “road map” for the removal of restrictions in a custody order. Instead, the trial court must take the parents “as is” at the time a custody order (Parenting Plan) is ordered. If restrictions are needed at the time the custody order is entered, then the restrictions are written into the custody order, and that is the end of the story. To lift the restrictions at some point in the future, the restricted parent would need to bring a Supplemental Petition to Modify the Parenting Plan, and meet the requirements for a modification. The requirements to modify a Parenting Plan through a Supplemental Petition are beyond the scope of this article. However, getting restrictions removed through a Supplemental Petition would likely be much harder than under the “road map” approach.

Until recently the Second Circuit Court of Appeals followed the “road map” approach. (The Second Circuit covers Sarasota, Manatee, and DeSoto Counties). However, in a recent ruling the Second Circuit adopted a new and unique approach – a third way. Specifically, the Second Circuit no longer requires a “road map” to lift restrictions, but does not prohibit a Court from providing a “road map.” In legalese, “[a] court’s decision to set forth benchmarks or the like in a time-sharing order turns on equitable considerations.”

In adopting this new approach, the Second Circuit provided the following guidance:

  • “Road maps” are more likely to be implemented when the court is entering a temporary order. In such cases, a “road map” would help minimize the scope of disruptions so that the restrictions do not morph into de facto modifications.

  • Extreme restrictions also may merit a “road map.” So, a restriction that prevented all contact might appropriately provide a “road map” to allow for some contact.

  • On the other hand, “road maps” are less appropriate when the nature of the problem requiring the restriction is severe, where the problem will not be reasonably fixed, or where the time required to fix the problem is far into the future.

If you would like to read the case, and reach your own conclusions, here is the link:

Mallick v. Mallick

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