Posted by Nydia Streets of Streets Law in Florida Child Custody

An often employed rule in Florida child custody cases is that a court cannot engage in guessing when it comes to the future best interest of a child. That is, a court generally cannot rule on a major change that will take place in a child's life before that change happens. This rule has been applied in different ways with different results in some Florida appellate cases. One recent case examines how this rule is applied to orders concerning where a child will live once the child starts kindergarten. 

In Rivera v. Purtell, 5D17-2198 (Fla. 5th DCA 2018), the father was appealing an order that set aside his final judgment of paternity. On the trial level, the mother challenged the trial court's determination that the parties would exercise equal timesharing until their child started kindergarten at which point the child would live primarily with the father. The trial court agreed with the mother that this was an impermissible prospective determination of timesharing and vacated its final judgment. On appeal, the father argued the trial court committed an error in setting aside the final judgment. 

The appellate court examined prior appellate cases that set aside orders that prospectively determined a child's best interest and concluded: "There was nothing speculative or uncertain about the child in this case starting kindergarten. In fact, section 61.13(2)(b)3.b, Florida Statutes (2016), anticipates that children will start school and therefore requires a trial court to designate a residence for school boundary purposes when entering a timesharing order. Such an event is by definition a reasonably and objectively anticipated change in circumstances that will occur at a time certain. Thus, in this case, it was entirely proper for the trial court to adjust timesharing as of the time the child starts kindergarten."

The appellate court further commented that the court should not in effect become a "de facto parent" holding: "Indeed, when crafting a timesharing plan, a trial court must be free to account for reasonably and objectively certain future events. Otherwise, the parties would be required to continuously seek permission from the court after every change that inevitably occurs in a child's life, like starting school." If you need help determining whether or not your parenting plan complies with Florida law, contact a Miami child custody lawyer to set a consultation