In Dunn, the husband took the children and relocated from Florida to live with his parents in Tennessee. This ocurred during the irreconcilable breakdown of the marriage, but before divorce was filed. His wife quickly filed a divorce and requested an emergency pickup order for return of the children, which the trial court granted.

The husband appealed, arguing that F.S. 61.13001, Florida’s relocation statute, doesn’t prohibit relocation before divorce is filed. The Third DCA agreed, noting the law applies only after a time-sharing order has been ordered, or a pending action has been filed.

However, the court held a that the trial court had discretion to order a parenting plan that included return of the children if determined to be in the best interests of the children under F.S. 61.13(2)(a).

The Fourth DCA stayed the pickup order and remanded for the trial court to hold a hearing on whether returning the children serves their best interests.

Michael DeVoe is a divorce attorney in Orlando, Florida practicing contested divorce, uncontested divorce, timesharing, visitation, custody, paternity, child support, injunctions, and other family law cases.

Florida law permits trial courts to temporarily modify (and suspend) child custody and time-sharing without prior notice in “emergencies.” Caselaw defines “emergencies” as threats of physical harm or imminent removal from the state. In Capps (December 2025), the Fourth DCA recognized that “substantial emotional abuse or trauma” may also qualify as an emergency.

The case arose from a contentious marriage dissolution proceeding. Initially, both parents were granted shared parental responsibility and timesharing. However, the situation escalated when the mother filed an emergency motion alleging harm by the father, including allegations of child drug exposure and child sexual abuse.

Shortly thereafter, the father filed a sworn emergency motion claiming the mother fabricated allegations and subjected the children to repeated, unnecessary invasive examinations, including drug testing and pelvic examinations, and that she made repetitive abuse reports that resulted in police and DCF involvement. The GAL corroborated the children were exposed to unnecessary medical and forensic evaluations and investigations. The trial court found that the mother’s actions were causing severe emotional trauma to the children. The trial court entered a temporary emergency order that restricted the mother’s contact with the children to supervised time-sharing.

The Fourth DCA affirmed the trial court’s emergency order pending a full evidentiary hearing. The Fourth DCA emphasized that its decision does not predetermine the outcome of the pending evidentiary hearing but validates the trial court’s authority to act promptly in emergencies, which may include situations in which children are exposed to emotional or psychological harm.

The case is notable because it explicitly recognizes mental and psychological harm as a basis for the domestic relations court to enter temporary, emergency orders on the topic of child time-sharing.

Michael DeVoe is a divorce attorney in Orlando, Florida practicing contested divorce, uncontested divorce, timesharing, visitation, custody, paternity, child support, injunctions, and other family law cases.

DCF relies on the public to report suspected child abuse. In Florida, everyone is legally required to report suspected child abuse. It is a crime to fail to report suspected child abuse. F.S. 39.205.

DCF receives abuse reports either by telephone or through their website. The phone number to make an abuse report is 1-800-96-ABUSE (1-800-962-2873). The website address for electronic submission of abuse reports is https://www.myflfamilies.com/services/abuse/abuse-hotline.

Any person who makes an abuse report in good faith is immune from liability. F.S. 39.203(1)(a). But sometimes reporters misuse the system to get an advantage in a divorce or paternity case, especially when parent timesharing is involved.

A false report is defined by law to include a report that is maliciously made:

• to harass, embarrass, or harm another person;
• for personal financial gain by the reporter;
• to obtain custody of a child; or
• for personal benefit for the reporting person in any other private dispute involving a child.

It is a crime to make a false report to either law enforcement or DCF. F.S. 837.05, F.S. 39.205(9). DCF may impose fines or refer the matter to the state attorney for prosecution. A person that makes a false abuse report may also be civilly liable for damages and attorney’s fees.

DCF has internal guidelines that supplement statutory law as to whether an abuse report is a “false report.” Obstacles to proving a false report include proving the reporter knew the report to be false when made and that the reporter’s intended purpose for making the report was to harass, embarrass, or harm another person or to get custody of a child.

There is often a gap between what the target of an abuse report knows to be false and what can be proven to be false. Many abuse investigations are closed without verified findings of abuse. This is not the equivalent of a finding that the report was false. Just because the investigator cannot corroborate an incident does not mean the incident did not occur. If, however, the investigator establishes facts that directly contradict the abuse report, then the abuse report would likely be considered a false report.

Malicious intent can also be difficult to prove. A report is not false just because the reporter has conflicting interests with the person who is being reported. There must be sufficient evidence to overcome a defense that the report, though misdirected or based on misunderstanding, was made in good faith.

We have over 15 years of experience representing parents in dependency cases. Call DeVoe Law Firm to assist you with a request for agency action if you are the victim of a false report to DCF or to defend you against allegations of false reports to DCF.

Michael DeVoe is a divorce attorney in Orlando, Florida practicing contested divorce, uncontested divorce, timesharing, visitation, custody, paternity, child support, injunctions, and other family law cases.

Documentary Evidence

1. Financial Records: Bank statements, tax returns, pay stubs, and expense reports to demonstrate income, assets, or debts.
2. Communication Records: Text messages, emails, and social media posts to show behavior, intent, or interactions between parties.
3. Legal Documents: Prenuptial agreements, custody orders, or divorce decrees.
   Medical or School Records: Evidence of a child’s health, needs, or performance in school.

Testimonial Evidence

1. Party Testimony: Statements made by the parties involved in the case.
2. Witness Testimony: Friends, family members, or professionals (e.g., teachers or counselors) who have relevant information about the situation.
3. Expert Testimony: Opinions from professionals like child psychologists, financial analysts, or social workers.

Physical Evidence

1. Photos relevant to issues in the case
2. Videos relevant to issues in the case
3. Physical items relevant to issues in the case

Demonstrative Evidence

1. Charts
2. Diagrams
3. Timelines
4. Other summaries that visually represent events or data to clarify complex issues

Circumstantial Evidence

1. Indirect evidence that implies a fact but does not directly prove it, such as showing a pattern of behavior.

Affidavits or Declarations

1. Written statements made under oath, often used in custody or restraining order cases.

Other Key Considerations:

1. Relevance: The evidence must relate directly to the issues in the case.
2. Admissibility: Evidence must comply with the rules of evidence, including being obtained legally and not being overly prejudicial or hearsay (unless exceptions apply).
3. Credibility: The court will evaluate the reliability and authenticity of the evidence.

Consulting an attorney can help ensure the proper gathering, presentation, and challenge of evidence in family law cases.

Michael DeVoe is a divorce attorney in Orlando, Florida practicing contested divorce, uncontested divorce, timesharing, visitation, custody, paternity, child support, injunctions, and other family law cases.

Grandparent Visitation Historically

In the past, Florida law took a permissive stance on grandparent visitation, allowing grandparent visitation over parent objection if it advanced the child’s best interest. [1]

In Padgett (1991), the Florida Supreme Court first recognized the “right to parent” as a fundamental right guaranteed by the Florida Constitution (Right of Privacy, Article I, Section 23), as well as the United States Constitution (14th Amendment, Due Process Clause). [2] Laws that infringe on a fundamental constitutional right are subject to “strict scrutiny.” “Strict scrutiny” means that the government must use the least restrictive means to achieve a compelling state interest when infringing upon the constitutional right. In the context of the “right to parent,” the Court held that the government may pursue its compelling interest of protecting vulnerable children by substituting its judgment over that of a parent only if a child is endangered while in parent care. Endangerment indicates the parent’s decision-making ability is impaired, justifying government intervention. Endangerment requires proof of actual or imminent harm. It is a much more stringent standard than the more lenient best interest standard.

In Beagle (1996), the Florida Supreme Court applied the principles expressed in Padgett to Florida’s grandparent visitation statute. The Court held that laws permitting grandparent visitation over parent objection are unconstitutional without proof that a child is endangered while in parent care. The Court held that laws granting grandparent visitation over parent objection under the best interest standard impermissibly intrude upon a parent’s personal autonomy and individual decision-making authority, including the right to rear children free from third party interference. Third parties like grandparetnts fail to assert a sufficient “compelling interest” to interfere with parental decisions unless it is  proven that parental decisions (such as denying grandparent visitation) endanger a child.

It makes sense to require proof of endangerment or detriment before over-ruling parental decisions. Most people would agree that a relative or non-relative should not be able to take custody of a child from their parent just because the petitioner lives in a better school district, has a bigger home, or owns a pony. Grandparents have had more time to accumulate wealth and status. Retirement allows more time to devote to child rearing. As a practical matter, grandparents are well-positioned to make a compelling best interest argument. But under Beagle, advancement of the child’s best interest is insufficient justification for laws that would infringe on parental decisions (such as the parent’s decision as to who may visit their children).

Recent Changes in Florida Law May Open the Door to Grandparent Visitation Initiatives

Florida Supreme Court Rejects Florida’s Constitutional “Right to Privacy.” In April 2024, the Florida Supreme Court issued a blockbuster opinion that reversed 33 years of legal precedent. The Court implicitly invalidated the “right to parent” as a fundamental constitutional right under Florida law. In Planned Parenthood, the conservative appointees of the Florida Supreme Court re-interpreted Florida’s Constitution, Article 1, Section 23, entitled “Right of Privacy” and paradoxically held that the “the right to be let alone and free from governmental intrusion into a person’s private life” does not extend to individual liberty, personal autonomy, and decision-making, the source of parental rights in Florida. [3] Consequently, the Florida Constitution no longer appears to prohibit laws that interfere with the “right to parent,” including laws that would compel grandparent visitation over parent objection even under the lenient best interest standard.

“Right to Privacy” Under Federal Law. For the time being, the Due Process Clause of the Fourteenth Amendment of the United States Constitution still appears to recognize the “right to parent” as a fundamental constitutional right, requiring proof of endangerment before a third party may substitute its judgment for that of a parent. [4] The Due Process Clause of the United States Constitution allows state laws to give more protection to recognized constitutional rights, but not less. [5] Theoretically, it would be unconstitutional under the U. S. Constitution if Florida were to pass legislation permitting grandparent visitation over parent objection without proof of endangerment. However, federal law is not entirely clear on the subject, potentially permitting infringement of the right to parent even in cases in which the government’s “compelling interest” is something more than promoting the child’s best interest but less than protecting a child from endangerment. [6]

Conclusion

Under existing law, grandparents are unable to directly petition for visitation and time-sharing, except in rare circumstances. Recent changes in Florida constitutional law pave the way for new legislation enabling grandparent visitation over parent objection under a more lenient standard than the currently applicable endangerment standard. Until such legislation is passed, grandparents who meet statutory criteria may still seek visitation by filing a direct petition for time-sharing, by filing a petition for temporary custody by extended family member, or by motion through an open dependency case.

Endnotes
1. Ch. 752, Florida Statutes (2000).
2. See also Richardson (2000); Von Eiff v. Azicri (1998); Saul v. Brunetti (2000).
3. Planned Parenthood of Southwest and Central Florida vs. The State of Florida (2024).
4. Santosky v. Kramer (1982) (“[F]reedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment.”); But see Troxel v. Granville (2000) (“[W]e do not consider . . . whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation. We do not, and need not, define today the precise scope of the parental due process right in the visitation context…. Because much state-court adjudication in this context occurs on a case-by-case basis, we would be hesitant to hold that specific nonparental visitation statutes violate the Due Process Clause as a per se matter.”)
5. The Fourteenth Amendment of the United States Constitution provides, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
6. See Troxel, n.4.

Michael DeVoe is a divorce attorney in Orlando, Florida practicing contested divorce, uncontested divorce, timesharing, visitation, custody, paternity, child support, injunctions, and other family law cases.

Courts are required to grant parents “shared parental responsibility” unless it would be detrimental to their child.[1] “Shared parental responsibility” means major decisions affecting the child are to be made after the parents confer and reach an agreement.[2]

When parents cannot reach an agreement on a major decision that is not specifically addressed in a court-ordered parenting plan, the dispute should be presented to the trial court for resolution.[3] In resolving the impasse, the lower tribunal must be guided by a consideration of the best interests of the child.[4]

An important threshold consideration is deciding what procedure to use to invoke the court’s jurisdiction to resolve a shared parenting deadlock in an existing parenting plan. Modification of a court-ordered parenting plan is initiated by supplemental petition.[5]  Clarification of a court-ordered parenting plan is initiated by motion. However, the decision to vaccinate is not simply a clarification of the shared parenting directive in the parenting plan. Florida law provides that “a clarification seeks to make a judgment clearer and more precise, as opposed to a modification, which seeks to change the status quo.”[6] Therefore, a parent already subject to a court-ordered parenting plan must file a supplemental petition for modification to resolve an impasse over vaccination and immunization.

In McGrath v. Mountain, 784 So. 2d 607 (Fla. 5^th DCA 2001), an original proceeding in paternity, the parents disagreed on the topic of vaccination and immunization. The father presented testimony as to the benefits of immunization. The mother, a chiropractor who used holistic medicine and homeopathy, opposed immunization on medical and religious grounds. The trial court granted the mother the right to make the decision on vaccination and immunization. The Fifth District determined both parties supplied the trial court with competent, substantial evidence, and therefore it could not substitute its judgment for the judgment of the trial court.

In Winters v. Brown, 51 So. 3d 656 (Fla. 4^th DCA 2011), an original proceeding in paternity, the parents disagreed on the topic of vaccination and immunization. The father testified in favor of traditional medical care, including well baby exams, blood draws, urinalysis, and vaccinations. The mother, a chiropractor and proponent of holistic medicine, testified a tenet of her religious beliefs is that anything introduced into the body to prevent disease or treat illness is against the will of God, including vaccines. The Fourth District observed, “While courts have consistently overturned restrictions on exposing a child to a parent’s religious beliefs and practices, they make an exception where there is a clear, affirmative showing that these religious activities will be harmful to the child.”[7] The Fourth District found notable that the trial court considered and weighed Mother’s religious-based objection in its determination of the child’s best interests when it stated:

“The issue . . . is not one of simply exposing the minor child to the mother’s religious beliefs and practices, it involves an issue that could cause physical and serious harm to the minor child. When parents cannot agree, the court is called upon to break the impasse, and that decision must be made in the best interests of the minor child.”

The Fourth District determined the trial court’s decision was supported by competent, substantial evidence and affirmed the trial court.

In Palmquist v. Potter, FLWSUPP 2901PALM, Case No. 20-DR-386, Second Judicial Circuit in and for Gadsden County (March 6, 2021), an original proceeding in dissolution of marriage, the trial court was tasked with resolving a deadlock between the parents over vaccination and immunization. The Court did not believe either party presented sufficient evidence for a determination of the issue. The Court established a procedure for the parents to attempt to confer and agree on the topic, ordering:

[H]usband and wife will jointly confer with their minor child’s pediatrician, Carlos Hidalgo, M.D., and after listening to his professional opinions and advice regarding the advantages and disadvantages of immunizations, will use their best efforts to reach an agreement on which course to take. The consultation should include a discussion of any underlying health conditions or allergies that could make standard childhood immunizations contraindicated for the minor child. The consultation will occur no later than 30 days from the date of this order. If an agreement is reached using shared responsibility, the wife will file a notice of withdrawal of her motion. If not, the parties will contact the Court’s Judicial Assistant and set an expedited final hearing on the matter.

Note that the above family cases involve disagreement over vaccination and immunization between parents, as opposed to other forums in which parent decision-making may conflict with institutional policy, for example with private religious school[8] or cases involving DCF.[9]

When parents ask the Court to resolve a good faith impasse over vaccination and immunization, it is error for the court to grant the prevailing parent ultimate decision-making authority over all medical care, absent evidence of detriment broader than that discrete issue.[10]

Conclusion

When parents disagree on whether to get their children vaccinated or immunized, they must make a good faith effort to discuss and attempt to reach an agreement. If parents are unable to reach an agreement, then either may file a supplemental petition to have the court determine which parent shall be authorized to make the decision on vaccination. The parents need to provide the court with sufficient evidence to make a decision, such as testimony by a health care professional. A trial court’s determination of the issue is likely to be upheld if based on competent, substantial evidence.

Michael DeVoe is a divorce attorney in Orlando practicing contested divorce, uncontested divorce, timesharing, visitation, custody, paternity, child support, injunctions, and other family law cases.

——————————————–

[1] See F.S. 61.13(2)(B)(2).

[2] F.S. 61.046(17) and Gerenscer v. Mills, 4 So. 3d 22 (Fla. 5^th DCA 2009).

[3] Lane v. Lane, 254 So. 3d 570, 573 (Fla. 3d DCA 2018) (citing Dickson v. Dickson, 169 So. 3d 287, 289 (Fla. 5th DCA 2015)).

[4] Id. (citing Dickson, 169 So. 3d at 290; Gerencser, 4 So. 3d at 23-24; Sotnick v. Sotnick, 650 So. 2d 157, 159-60 (Fla. 3d DCA 1995).

[5] See e.g. Roque v. Paskow, 812 So. 2d 500 (Fla. 4th DCA 2002); Fussell v. Fussell, 778 So. 2d 517 (Fla. 1st DCA 2001); and Gerber v. Gerber, 153 So. 3d 304 (Fla. 2d DCA 2014).  See also Fla.Fam.L.R.P. Rule 12.110(h).

[6] See Bustamante v. O’Brien, 286 So. 3d 352, 355 (Fla. 1^st DCA 2019) (citing Roque v. Paskow, 812 So. 2d 500, 503 (Fla. 4th DCA 2002) (citing Fussell v. Fussell, 778 So. 2d 517, 518 (Fla. 1st DCA 2001) and Dickinson v. Dickinson, 746 So. 2d 1253, 1254 (Fla. 5th DCA 1999)).

[7] See Winters v. Brown, 51 So. 3d 656, 657 (Fla. 4^th DCA 2011) Mesa v. Mesa, 652 So. 2d 456, 457 (Fla. 4th DCA 1995) (citation omitted).

[8] Flynn v. Estevez, 221 So.3d 1241 (Fla. 1^st DCA 2017).

[9] N.C. v. Dep’t of Ch. and Fam., 290 So. 3d 508 (Fla. 2d DCA 2020). Under certain circumstances, DCF or a designated caregiver can arrange for “ordinary immunizations,” provided certain conditions precedent are satisfied.

[10] See e.g. Gerenscer v. Mills, 4 So. 3d 22 (Fla. 5^th DCA 2009). Cf. Winters, supra.

Help Children Deal with Stress – Bullet Points -Quick Tips

Helping Children Deal with Stress During Corona Virus – Powerpoint

Florida Statute §39.202(7)(a) generally requires DCF to keep records of its cases until the child who is the subject of the record is 30 years of age.  You can submit a request for investigation records at: Public Records Center (mycusthelp.com)

Do not create your account anonymously. You must provide your contact information along with your identification before the DCF records can be released so that DCF can verify you are entitled to receive the records under governing law.

For case manager records, send a written request directed to the following address:

CBC of Central Florida
Attn. Records Custodian
4001 Pelee Street, Suite 100
Orlando, FL 32817

Following a non-jury trial, the trial judge ordered John to pay permanent periodic alimony, child support, attorney’s fees, and a reimbursable lump sum to Heather for alternate housing. It also required him to maintain life insurance with his former wife as the named beneficiary. The court also established a parenting plan.

No Trial Transcript on Appeal

In this case, there wasn’t a trial transcript in the record. Without this, an appellate court can’t properly resolve the underlying factual issues to determine whether the trial court’s judgment is supported by the evidence. A Florida appellate court will review the sufficiency of evidence at trial without a trial transcript and will reverse a dissolution only when the trial court’s error is clear on the face of the order or judgment.

Parenting Plan Requirements

The District Court of Appeals agreed with John’s argument that the trial court’s parenting plan failed to comply with statutory requirements because it didn’t make findings required by § 61.13(2)(b) of the Florida Statutes. Even without a trial transcript, Judge Michael S. Orfinger wrote that it was apparent that the parenting plan was not specific enough to satisfy the law. This section states that a parenting plan must, at a minimum, contain the following:

1. A detailed description of how the parents will share and be responsible for the daily tasks associated with the upbringing of the child;

2. The time-sharing schedule arrangements that specify the time that the minor child will spend with each parent;

3. A designation of which parent will be responsible for:

4. Any and all forms of health care. If the court orders shared parental responsibility over health care decisions, the parenting plan must provide that either parent may consent to mental health treatment for the child;

5. School-related matters, including the address to be used for school-boundary determination and registration;

6. Other activities; and

7. A detailed description of the methods and technologies that the parents will use to communicate with the

Parenting Plan Lacked Specificity

Judge Orfinger said that a trial court’s failure to make these required factual findings was a reversible error even without a transcript. In the case of the Dukes, the final judgment required the couple to share parenting of the child and “divide uncovered medical expenses in proportion to the child support guideline percentages.” The trial judge also ordered that Heather would “have the majority of the responsibility with the parties’ remaining minor child.”

The parenting plan provided that John would have “liberal contact with the minor child upon providing 48 hours’ notice” to Heather, and he would have “no less than 1/3 of the overnights” with their child. As long as Heather didn’t indicate a prior conflict with the child, John was to be allowed to have “two weekends per month and the balance of weekdays for a total of at least 10 calendar nights per month.” Finally, the parenting plan stated that both parents “are to be involved with assisting the child with his school work during the time that the parent is exercising time-sharing.”

Judge Orfinger said that these findings “lack specificity.” Thus, the trial court’s failure to include a more specific parenting plan that complied with the statute in the final judgment was an error. The appellate court reversed the trial court’s decision and remanded the case to the trial court for a legally sufficient parenting plan in a final judgment. Duke v. Duke, Case No. 5D16-120 (Fla. DCA 5^th February 10, 2017).

Contact Us

As you can see from the case of the Dukes above, the statutory requirements for a parenting plan must be strictly followed. Speak with an attorney about your rights, especially as they concern your children. Call DeVoe Law Firm to schedule a free consultation with an experienced family law attorney.

In an appeal from the Circuit Court for Orange County, Zameena (the former wife) appealed an order regarding custody and support where the trial judge on his own awarded her former husband El Houcine sole timesharing of the parties’ children and limited her contact with the children to “as allowed” by her ex-husband.

In this case, a 2015 final judgment was entered dissolving the marriage which ratified an agreed parenting plan from the parties. The agreement provided for shared parental responsibility for all major decisions involving their three minor children, and they agreed to an equal division of timesharing with their children. The exchange of the children was to take place each Sunday.

The former husband asked the trial court to designate a specific location where the parties would exchange their children for timesharing, claiming that the parenting plan didn’t specify the location for the parties’ children exchange. Because of a recent incident, he asked the court to direct all future timesharing exchanges take place at an Orlando facility that provides a monitored program for children custody exchanges. The former husband set his motion for hearing and gave proper notice to his ex-wife.

The former wife didn’t attend this hearing, and the trial court entered the order on appeal, in which—on its own motion—awarded the former husband sole timesharing of the parties’ children and limited his ex-wife’s contact with the children to “as allowed” by him. The court also reduced his monthly child support obligation. Following the trial court’s denial of the former wife’s motion for rehearing, she appealed.

Judge Brian D. Lambert of Florida’s Fifth District Court of Appeal wrote in his opinion that the former wife argued that the trial court’s order violated her due process rights. She said that it significantly modified her timesharing with her children—when the only matter scheduled to be discussed at the hearing was the location for the timesharing exchange. Judge Lambert and the District Court of Appeal agreed, explaining that it’s well settled that an order adjudicating issues not presented by the pleadings, noticed to the parties, or litigated at the trail court level denies fundamental due process.

Citing a First District appellate decision, Judge Lambert said that a trial court violates due process when it “modifies visitation, changes primary residence, or alters child support when the notice of hearing does not include this issue.” In addition, Lambert noted that there was no emergency alleged by the former husband in his motion that required the trial court to act.

Concluding that the trial court’s order was entered in violation of Zameena’s right to due process, the District Court of Appeal reversed. Barsis v. Barsis, Case No. 5D 16 – 2768 (Fla. 5th DCA February 3, 2017).

Do you have questions about timesharing and timesharing exchanges for your children with your ex-spouse? Contact Michael DeVoe, an experienced family law attorney in Orlando. Michael will answer your questions about child custody and timesharing agreements, as well as any other family law issues like child support modification and injunctions. Contact Michael DeVoe today for a free consultation at (407) 284-1620 or use the easy-to-use email form on our website.