I have custody of my child with my ex-wife having limited visitation rights though she rarely uses her parenting time.
This year, my child is supposed to spend Christmas in another state with her mother per the court order, but my child does not want to go.
Do we have to send my child to Texas over the holidays to see her mother since it is ordered by the court even though the child doesn’t wish to go?
If the existing court order requires you to send the child to Texas over Christmas, then you must comply with the order even if the mother has not exercised her rights in the past.
You have the option of filing an emergency motion requesting that the court allow the child to stay in Florida, but it is questionable under the facts you have provided whether the court will hear the motion on an emergency basis.
You may have the option to petition the court to modify the parenting plan based on the fact that the mother has not been exercising her visitation rights. In order to modify an existing parenting plan or time-sharing agreement, Florida courts apply what is called the “substantial change test.”
The substantial change test requires the party seeking modification to show two things. First, that the circumstances have substantially and materially changed since the original agreement was made and second, that it is in the child’s best interests to change the parenting plan.
In making its determination, the court can consider the reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
However, this is only one factor for the court to consider. An attorney who can examine the full details of your situation will be able to advise you whether a supplemental petition for modification of the parenting plan is in your family’s best interests.
You should contact a domestic litigation attorney licensed in your area. Cordell & Cordell has attorneys who are licensed and located in Florida who would be happy to discuss your case with you.
Alison K. Morriss is a Staff Attorney in the Tampa, Florida office of Cordell & Cordell, where she practices domestic relations exclusively. Ms. Morriss is licensed to practice law in the state of Florida. Ms. Morriss received her Bachelor of Arts in Religious Studies, History and Business Administration from Stetson University. She continued her education and received her Juris Doctor from Stetson University College of Law, and her Master of Business Administration from Stetson University School of Business.