Court Cannot Delegate Time Sharing Decision to Third Parties

It is common for trial courts to want input from mental health professionals when establishing a parenting plan that is in the best interest of a child in a divorce or paternity action. It is error for the court to wholesale delegate its responsibility to establish a parenting plan to third parties, such as counselors, therapists, or the guardian ad litem. Trial courts frequently attempt to avoid running afoul of the rule against delegation by retaining “veto power” over third party recommendations. As practical matter, this construct does not end up being materially different than wholesale delegation. The Fifth District held this practice to be error.

In Kiswani v. Hafza (February 14, 2025), the trial court made the former wife’s timesharing contingent on recommendations from medical professionals and allowing the minor child’s therapist “to determine if, when and the parameters of telephonic and/or video contact” should occur between the former wife and the minor child. Although the trial court reserved authority to make the final decision on timesharing, the former wife’s timesharing could not resume absent a stamp of approval from third parties. The Fifth District found this type of delegation of authority to be legally impermissible, even with the retention of veto power. The Fifth District reversed the trial court and remanded for a timesharing plan that complies with legal standards.

There are a fair number of cases that prohibit the trial court from delegating timesharing decisions to third parties. Kiswani is helpful by going as a step further to make clear that retention of “veto power” does not cure otherwise impermissible delegation of judicial responsibility.

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.