By The Honorable Thomas R. Eineman
Trial court decisions regarding time sharing and attendant custody matters continue to be reviewed frequently by Florida’s appellate courts. The matter of relocation continues to be a “hot button” issue often addressed at the appellate level. The year 2018 has been no exception. The following are the most interesting custody cases of 2018 so far:
- Child’s mother unexpectedly died and stepfather filed a Petition for Ex-Parte Emergency Custody by Extended Family Member pursuant to Chapter 751.03, Florida Statutes. In response, the child’s father filed an Emergency Verified Motion for Child Pick-Up Order. The child had lived with her stepfather and mother for a number of years in Florida and the child’s father was currently stationed in Germany. Visitation between the father and minor child had been sporadic over the years and there was no doubt that the child wanted to continue to reside with her stepfather.After an evidentiary hearing the Court granted temporary custody of the minor child to the stepfather, determining under Chapter 61.13, Florida Statutes, that such was in the best interests of the minor child. The trial court erred in this regard. In custody disputes between a natural parent and a third party, courts should give deference to the natural parent pursuant to the common law parental preference rule, “unless and until there is sufficient proof to establish parental unfitness or substantial threat of significant and demonstrable harm to the child.” Corona v. Harris, 164 So.3d 159, 160 (Fla. 1st DCA 2015), (quoting LiFleur v. Webster, 138 So.3d 570, 574 (Fla. 3d DCA 2014). In the instant case the child’s father should have been awarded custody of the minor child unless the step-father proved either: (1) the biological father was unfit; or (2) remaining with the biological father would result in demonstrable harm to the minor child. The trial court found the father to be fit but thought it would be detrimental to the child for her to move to Germany. However, the detriment necessary to deny a natural parent custody involves something much more serious than the discomfort normally experienced by a child when moved from a familiar environment to a new one. Cause remanded for the trial court to make more findings regarding alleged detriment to the child if she relocates to Germany. Morris v. Morris, Case No, 1D16-4695 (Fla. 1st DCA 2018).
- Trial court entered a Final Judgment of Dissolution of Marriage which provided for the parties to have shared parental responsibility concerning the minor child and provided for the father to have supervised parenting time. Although trial courts have broad discretion in determining time sharing and for the entry of parenting plans, the trial court abused its discretion by failing to accord full faith and credit to a previously entered Kentucky Domestic Violence Order of Protection under 18 U.S.C. § 2265(a) and Chapter 741.315(2), Florida Statutes. The order of protection prohibited the father from coming within 500 feet of the minor child. Even though the parenting time granted by the trial court to the father was supervised the final judgment of dissolution of marriage conflicts with the terms of the Kentucky order of protection. This was even more true when the Kentucky order was direct and unrefuted evidence of domestic violence against the mother and the minor child by the father. The trial court only made passing reference to domestic violence in its Final Judgment of Dissolution of Marriage. The matter was remanded back to the trial court to make findings in accordance with Chapter 61.13, Florida Statutes, and the Kentucky order of protection. Smith v. Daniel, Case No. 1D17-4240 (Fla. 1st DCA 2018).
- In dissolution of marriage action the wife sought production of the husband’s medical records from his psychotherapist and from other organizations that participated in the husband’s treatment. She claimed that the husband’s mental health records were relevant to the issue of child custody. The records sought were privileged and confidential but the wife argued that she demonstrated a sufficient need to overcome the privacy concerns. However, she did not allege the occurrence of a major event that would qualify as the extreme circumstance necessary to obtain the husband’s medical records given that the records are privileged. The wife was not aware of a single problem regarding husband’s care of their child but only alleged that he previously committed an act of domestic violence against her and would curse her out when they met to exchange the child. Appellate court determined that neither of the wife’s claims qualifies as the type of extreme condition that would allow the disclosure of husband’s medical records. Further, an in camera inspection would not cure the wife’s failure to demonstrate some type of extreme circumstance in order to overcome the husband’s privilege. Brooks v. Brooks, Case No. 1D17-1395 (Fla. 1st DCA 2018).
- Trial court entered a Final Judgment of Dissolution of Marriage. Chapter 61.13(2)(b)3., Florida Statutes, requires a parenting plan to contain a designation of residence for school attendance. The designation of residence for school attendance must be made based on the best interests of the child. The determination of the best interests of the child is made by evaluating more those factors affecting the welfare and interests of the child as set forth in Chapter 61.13(3), Florida Statutes. Although the trial court is not required to address each of the factors set forth independently, it must, at a minimum, find that its timesharing determination and school designation is in the best interests of the child. The trial court was reversed because it failed to consider the factors set forth in Chapter 61.13, Florida Statutes, in its determination of school designation. Bruce v. Bruce, Case No. 5D15-2136 (Fla. 5th DCA 2018).
- The trial court erred when it determined that Florida’s relocation statute set forth in Chapter 61.13001, Florida Statutes, did not apply when an individual is deported. The wife was from the Philippines and the court provided in the Final Judgment of Dissolution of Marriage that if the wife’s request for citizenship is denied she may take the child with her and go back to the Philippines. The plain statutory language demonstrates that the relocation statute is applicable whether a party relocates voluntarily or involuntarily. Also, the trial court erred when it determined now that the wife may relocate with the child sometime in the future (when her citizenship application is denied). This prospective based analysis is improper and a decision regarding relocation must be made at the time of the final hearing in accordance with Arthur v. Arthur, 54 So.3d 454 (Fla. 2010). Castleman v. Bicaldo, Case 4D17-827 (Fla. 4th DCA 2018).
- Trial court entered a Final Judgment of Dissolution of Marriage that provided for a rotating custody arrangement which was to last for approximately the next twenty months. When the Final Judgment was entered the husband resided in Florida and the wife resided in Alabama and the parties would meet at a halfway point to exchange the child. The trial court determined that when the child became school age (after twenty months) that the child would reside with the wife for the majority of time in Alabama. This was error and was another case of a trial court erroneously deciding now about time sharing reside in the future. The trial court was ordered to delete from the Final Judgment any reference to a custody determination in the future. Preudhomme v. Preudhomme, Case No. 1D17-1615 (Fla. 1st DCA 2018).
- Wife filed for dissolution of marriage and then relocated to another state with the parties’ minor child without first obtaining a court order or agreement from the husband that she could relocate. During the pendency of the case the parties entered into an agreement that the child would remain in Mother’s custody pending the outcome of a scheduled mediation. If the parties were unable to reach an agreement during mediation, either party would be able to file a motion for temporary relief pending trial. Father would have one month of timesharing in the summer, which required that he would pick the child in Michigan, as well as timesharing over winter break. Additionally, the agreement provided, “Father shall not be prejudiced should the child end up attending school in Michigan pending a scheduled mediation or trial date.” The agreement specifically provided that Father reserved his right to litigate the issues raised in the emergency motion at the time of trial. The stipulation specified that it was “a temporary agreement without prejudice to either side taking a different, new, or conflicting position later.” Thereafter, during his summer time sharing, the husband filed a motion seeking to be allowed to keep the child with him in Florida because the wife had not filed a petition to relocate in accordance with the statute. The language of the agreement demonstrated that the husband had in fact agreed to a temporary relocation by the wife with the parties’ child and therefore it was not necessary under the statute that the wife file a petition to relocate. Gimonge v. Gimonge, Case No. 5D17-2747 (Fla. 5th DCA 2018).
- In post-dissolution action the trial court previously entered an order providing that the Former Husband would have majority time sharing with the parties’ minor child and that both parties must provide a residential address to the other parent. The Former Husband thereafter filed a motion with the court alleging that the Former Wife did not provide a residential address and after hearing, the trial court ordered that the Former Wife would not have any time sharing with the minor child until she provides her address. This was error, as a trial court cannot modify a parenting plan or time sharing arrangement as a sanction for contempt of court. Trial court must make its custody and timesharing decisions based upon the best interests of the minor child. Lewis v. Juliano, Case No. 4D17-2544 (Fla. 4th DCA 2018).
- The parties were in a dissolution of marriage action. The Husband was an active member of the United States Navy and during the dissolution of marriage action was transferred to Guam. Pursuant to Chapter 61.13002(2), Florida Statutes, the Husband designated his parents to exercise his timesharing while he is stationed in Guam. The Wife argued that Chapter 61.13002(2), Florida Statutes, was not applicable because the Husband’s assignment to Guam was a permanent change of station as defined by the Navy, and not a temporary assignment as would be required to invoke section Chapter 61.13002(2), Florida Statutes. The trial court erred when it designated the Husband’s parents to exercise the Husband’s time sharing while he was stationed in Guam. The Court determined that Chapter 61.13002(7), Florida Statutes, provides that a permanent change of station by military personnel is governed by Chapter 61.13001, Florida Statutes, and the move by the Husband to Guam was not a temporary assignment which would trigger Chapter 61.13002, Florida Statutes. In its decision the appellate court analyzed how the military defines a temporary assignment, which is generally not longer than 180 days. Overstreet v. Overstreet, Case No. 1D17-4463 (Fla. 1st DCA 2018).
- Both parents and their children were residents of Ohio. The trial court granted a Final Judgment of Injunction for Protection Against Domestic Violence after the Mother and minor children came to Florida from Ohio and after the Mother claimed she was a victim of domestic violence. The trial court erred when it entered the injunction, as Florida lacked personal jurisdiction over the Respondent. The trial court identified three grounds on which it based its exercise of personal jurisdiction: (1) that the Respondent “has family living in Florida”; (2) that the Respondent “has ‘sent’ the Mother and the children to Florida on approximately six occasions in the past”; and (3) that when the Mother and children came to Florida in the past the Respondent would come and visit. None of these facts supports personal jurisdiction over the Respondent under Chapter 48.193, Florida Statutes, the long-arm statute. There is no “safety exception” to the requirements of the long-arm statute, and lastly, this was not a proper exercise of the court’s emergency jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act, as the injunction action was not a custody dispute and the UCCJEA does not establish an independent basis to exercise jurisdiction over the Respondent. Youssef v. Zaitouni, Case No. 2D17-926 (Fla. 2d DCA 2018).
The Honorable Thomas R. Eineman serves as a Circuit Court Judge in the Fifth Judicial Circuit, Hernando County, Florida. His current docket assignments are domestic relations, domestic violence and other civil orders of protection, and the unified family court. Judge Eineman is a past president of the Citrus-Hernando Inn of Court and is a member of the domestic violence committee of the family law section of the Florida Bar. He previously served on the Marital and Family Law Certification Committee of The Florida Bar and was a member of the Steering Committee for The Florida Bar’s publication “Florida Dissolution of Marriage,” Sixth Edition. Judge Eineman is the author of the “Florida Family Law Trial Notebook”, a practitioner’s guide to the practice of marital and family law. Each year he updates the book with new case law and statutory changes.
Judge Eineman will be a presenter at the FLAFCC Conference to be held in Orlando September 26-28, 2018.