Grounds for Changing Custody

by Christi from West Palm Beach, Florida, Palm Beach County

Is repeated denial of visitation grounds for changing custody? My husband's ex-wife, has been denying my husband his court ordered visitation with their 6 year old son.

On a few occasions shortly after I became involved with my husband, the child, then 5 was picked up from school by his mother on Friday instead of leaving him to be picked up by my husband.

When my husband went to her apartment to pick up his son, the child would hide behind the sofa and instead of encouraging the child to go with his father.

The mother would tell him that he didn't have to go visit if he didn't want to and would not allow my husband to come into her apartment to try to convince him. Later, when my husband tried to call his son on the phone, she would not answer the phone.

On one of these occasions, the child had stated that he wanted to take his DSI game with him and would go with his father if his mother would allow him to bring it but she refused to let the game go with him and the child refused to go with my husband.

On one occasion when my husband had picked up my children for me and then gone to pick up his son, my children waited in the car for almost an hour while my husband waited for his son to come to him.

During this time the mother would tell my husband that the child didn't want to go with him because he didn't spend any time with him during visitations, which is not true. He spends alone time with his son as well as all of us spend time as a family.

On one occasion, the mother denied visitation stating the child was ill and that she had taken him to the doctor. My husband contacted the child's doctor and was told that he had been brought in to be checked because the school had sent a note saying the child was underweight but the doctor said he was fine.

On the most recent occasion, the mother denied visitation stating the child had had a serious head injury and needed to stay with her to rest and catch up on his school work because he had not been to school all week.

When my husband contacted the school he was told by the aftercare director that the child had hurt his head but that it was not serious and stated he felt fine right after the injury.

He also called the doctor and was told there was no reason the child could not resume normal activities. However the mother insisted on keeping the child stating that he was sleeping when my husband attempted to pick him up on Friday.

When my husband tried to contact his son on the phone, the mother did not answer and then replied by text that the child did not want to talk to him because he overheard him say to the mother that she was going to lose him. She said the child would call him when he felt like it.

On all occasions that the child has been with us, he gets along great with my children (ages 9 and 11) and with me. My 9 year old son and him are buddies. Yet last Saturday my husband got a call from his mother stating that the ex had called her and had the child speak with her and told the grandmother that my children treated him badly, hurt him and took away his things and he did not like to visit with his father because of this.

Also, we found out at that time that the child had been taken to the hospital when the injury happened but my husband was never notified until it was time for his visitation. Are these incidents enough to have the primary residence changed for my husband's son to live with us?

He is always happy and sometimes even reluctant to go back to his mother's so I find it hard to believe what his mother is telling his family members. Also, is there a way for us to legally keep her from contacting my husband's family with lies? She has done it on at least three separate occasions. Thank you for your assistance.

Answer to Florida Child Custody Question

Dear Christi,

This is so sad.

Unfortunately, antics like these are common with disputing parents, but judges are well aware of them.

The saddest thing is that the children are the ones who suffer most.

To answer your first question if these repeated incidents are grounds to change custody, the short answer is maybe.

Judges are bound to keep the best interests of the children involved in these custody disputes when they make any decision regarding custody, visitation, and time-sharing.

Having said that, the behavior of the mother that you've stated indicates a pattern that many judges will not take lightly. My suggestion would be to read up on the Best Interests factors judges must consider.

Have a look at § 61.13 subsection (3) where you'll find the law regarding the best interest factors for purposes of establishing or modifying parental responsibility, custody, and visitation.

And to your second question if you can keep her from bad-mouthing your husband, the short answer is maybe. You can try to appeal to her good senses and her motherly instincts, and argue that this kind of talk and behavior is not good for her child in the long run.

If that doesn't work, your husband can file a Motion for Civil Contempt Enforcement against her to ask the court to order that she stop contact with his family.

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