Posted by Nydia Streets of Streets Law in Florida Child Custody
What kind of schedule will the judge order for time-sharing in a Florida child custody case? The primary consideration when creating a time-sharing schedule is the best interest of the child. There is a presumption that equal time-sharing is in the best interest of a child. There are different versions of an equal time-sharing schedule, and if this is being considered in your case, you should consider how each version may affect your child. This was an issue in the case Stuart v. Lapete, 1D23-0213 (Fla. 1st DCA September 13, 2023).
In this paternity case, the father filed a motion for temporary relief and requested a temporary time-sharing schedule. His motion specifically sought an equal time-sharing schedule which rotated weekly - one week with the mother and one week with the father. The mother was living in Miami and the father was living in Tallahassee. The mother presented evidence regarding her breastfeeding schedule with the child. The father testified that he would prefer that each parent have two weeks at a time with the child to cut down on travel time between their residences. The mother’s counsel indicated that if it was known the father was going to request a two-week rotating schedule, she would have presented witnesses and evidence to refute this. The trial court nonetheless entered an order granting the parties two weeks per month with the child. The mother appealed.
The appellate court reversed, holding “Mother was not given notice in the pleadings that a two-week rotating schedule would be considered or an opportunity to put on witnesses concerning the effect of such a schedule. And the issue of a two-week rotating schedule was not tried by implied consent because mother raised a proper objection. Indeed, the trial court noted mother’s objection and advised mother’s counsel that the trial court would review proposed orders from counsel and then schedule another conference with the attorneys. But a conference with the attorneys was never scheduled. Instead, the trial court entered the order granting timesharing on a two-week rotating schedule. Because the issue was not raised in the pleadings and not tried by consent, the trial court violated mother’s right to due process and abused its discretion when it ordered timesharing on a two-week rotation.”
Also looking at the best interest of the child, the appellate court commented “Furthermore, there was no competent, substantial evidence to support the trial court’s finding that the two-week rotating schedule Mother’s proposed weekly rotation plan would have involved the same amount of travel on the part of the minor child. The only potential negative impact on the child in mother’s proposed plan that was not also present in the two-week rotation was one week per month spent in a hotel with father in Miami as opposed to a residence. The two-week rotation would necessitate a continuous two-week period of separation per month for a child of a very young age. One of the factors a trial court must consider in determining a child’s best interests is ‘[t]he developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs.’ Fla. Stat. § 61.13(3)(s). It is unclear why the trial court considered this length of separation to be in the child’s best interests. The principal benefit of the two-week rotating schedule over mother’s proposed plan appears to be less travel time for the parents (as opposed to the child).”
Schedule your meeting with a Miami Family Law Attorney to understand how the law may apply to the facts of your case.