Withholding timesharing from another parent during a pending divorce is a serious issue under Florida law. Florida’s public policy strongly favors frequent and continuing contact between children and both parents after separation or divorce, except in cases involving endangerment or other exceptional circumstances.

Florida Law on Timesharing During Divorce

Under Florida Statutes § 61.13, both parents are entitled to a meaningful relationship with their children, and the courts must consider the child’s best interests in determining timesharing schedules. Absent a court order to the contrary, neither parent has superior rights to custody or timesharing during the divorce process. Attempting to withhold a child from the other parent without court intervention can be detrimental to the withholding parent’s case and may result in negative legal consequences.

Temporary Timesharing Orders

While the divorce is pending, either party may request a temporary timesharing order under § 61.517, Florida Statutes. Courts are inclined to maintain stability and routine for the children. They may issue a temporary parenting plan specifying where the child will live and how parenting time will be divided until a final decision is reached.

Prohibited Conduct: Withholding Without Good Cause

Withholding a child from the other parent without a court order can be viewed as parental alienation, and the court may penalize the withholding parent. In Perez v. Fay, 160 So. 3d 459 (Fla. 2d DCA 2015), the court held that conduct by one parent intended to prevent or impair the child’s contact with the other parent can support a modification of timesharing or custody.

Unless there are emergency circumstances—such as imminent risk of harm, abuse, or neglect—unilateral action to withhold a child is not justified. Florida courts can impose sanctions up to changing custody, restricting future timesharing, or awarding make-up parenting time. Failure to comply with established timesharing may even result in contempt of court proceedings pursuant to § 61.13(4)(c), Florida Statutes.

Exceptions for Emergency Situations

If there is a genuine emergency, such as the threat of abuse, neglect, or abandonment, a parent may seek an emergency ex parte order to temporarily restrict or deny timesharing under § 61.534, Florida Statutes. However, this is reserved for truly exigent situations and requires immediate court intervention with proper notice and evidentiary support.

When No Court-Ordered Timesharing Plan Exists

If no court-ordered timesharing (parenting plan) exists during a pending Florida divorce, neither parent has a superior legal right to custody or access to the children unless special circumstances apply (such as cases involving children born out of wedlock). Instead, both parents stand on equal legal footing and must avoid self-help actions such as one parent unilaterally withholding the children from the other without proper cause.

Parental Rights Without a Court Order

Florida law presumes that, barring evidence of danger or harm, both parents should have frequent and continuing contact with their children during and after divorce. This public policy is reflected in Florida Statutes § 61.13, which establishes a rebuttable presumption in favor of equal timesharing being in the child’s best interests—even before any formal order is entered. Until the court issues a temporary or final parenting plan, each parent technically has equal rights to the child.

Withholding Children in Absence of a Timesharing Plan

If one parent withholds the children in the absence of a court order, the other parent’s remedy is not self-help but rather prompt filing with the court for temporary relief or establishment of a temporary parenting plan. Courts strongly disfavor one-sided actions and may view such conduct as a negative factor when eventually making timesharing decisions. Withholding without cause or court authorization may also be viewed as parental alienation, which can harm the withholding parent’s case.

Legal Steps for the Non-Withholding Parent

When faced with this situation:

• Promptly file a motion with the court for a temporary timesharing order, laying out the circumstances and, if necessary, requesting emergency relief for immediate access if the children’s welfare is at risk or being manipulated.
• Gather documentation and avoid confrontational exchanges outside the court process, as improper conduct can backfire.
• If the parties can agree, draft a written agreement and submit it to the court for expedited approval as a temporary plan.

Important Exception for Unmarried Parents

If the parties are unmarried and paternity has not been adjudicated, Florida Statute § 744.301(1) grants unwed mothers sole legal custody by default until a court establishes the father’s rights. In such cases, fathers must establish legal paternity before seeking court intervention for timesharing.

Conclusion

During the pendency of a divorce in Florida, withholding a child from the other parent without a court order is generally unlawful and contrary to the child’s best interests. The best course of action is to seek temporary relief from the court if there are legitimate concerns regarding safety or well-being. Always consult with an experienced Florida family law attorney before making decisions about timesharing.

Contact a Florida Timesharing Lawyer

If one parent is withholding children without a court-approved timesharing plan during a divorce, your parental rights deserve protection. We can also advise you when it may be acceptable to withhold children from a dangerous parent. The Law Offices of Adam G. Hill has the legal expertise and dedication to help you navigate this challenging situation and assert your right to meaningful contact with your children.

Call us toll-free at 833-918-1877 for a free consultation, or send us a message via our Contact page. We respond promptly and fight for parents facing disputes over timesharing and custody throughout Florida.

Protect your relationship with your children—don’t wait to get experienced legal help.

Key Points and Citations

• Fla. Stat. § 61.13 (best interests, presumption of equal timesharing)
• Fla. Stat. § 744.301(1) (sole legal custody for unwed mothers)
• § 61.517, Fla. Stat.
• § 61.534, Fla. Stat.
• § 61.13(4)(c), Fla. Stat.
• Hunter v. Hunter, 540 So. 2d 235 (Fla. 3d DCA 1989): The court found that withholding visitation without a legitimate cause may be considered in modifying custody arrangements.
• Perez v. Fay, 160 So. 3d 459 (Fla. 2d DCA 2015): Reaffirmed that intentional interference with timesharing can warrant court intervention and sanctions.
• Self-help withholding in the absence of court orders is discouraged and can influence future timesharing decisions