DENISE M. BIENVENU, APPELLANT,
v.
ROBERT P. BIENVENU, APPELLEE
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The Florida District Court of Appeal reversed a trial court's award of rotating (split) custody of two young children between parents living in different states, finding that such arrangements are disfavored under Florida law because they do not serve the best interests of the child. The court also vacated a bond requirement imposed on the mother as unsupported by the record.
Split-custody provisions that divide a child's time between parents are strongly disfavored and ordinarily cannot be sustained because they do not promote the best interests of the child. Such arrangements may only be approved in exceptional circumstances involving older and more mature children, cooperative parents living near each other, or divisions tied to actual events in the children's lives. The bond requirement was an abuse of discretion because the mother had no history of violating court orders, strong ties to Florida, and no demonstrated likelihood of removing the children from the state.
[1] Split-custody provisions are strongly disfavored in Florida and ordinarily may not be sustained.
[2] The primary concern of the court in custody cases is the well-being of the child, not the rights of the parents.
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Join FLexlaw to unlock all legal intelligence“It is well-settled Florida law that split-custody provisions, such as the one entered below, are strongly disfavored and ordinarily may not be sustained.”
Establishes the governing legal principle that rotating custody arrangements are presumptively invalid in Florida.
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Join FLexlaw to unlock all legal intelligenceDenise and Robert Bienvenu were married in 1975 while he was in the Air Force and had two sons, aged four and two at the time of the dissolution judgm…
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SCHWARTZ, Judge.
In a final judgment of dissolution, the trial court divided custody of the parties’ two sons, aged four and two respectively, so that — until the older boy reached school age when the issue was to be redetermined— they would alternately spend 5¾ months with their father, who lives in New Orleans, and 5¾ months with their mother in Dade County. Each parent’s right to custody was conditioned upon the posting of a $1,750 bond. Mrs. Bienvenu appeals1 from these determinations. We reverse. The parties, who were married in Dade County in 1975 while the husband was in the Air Force, had been engaged in a bitter dispute over their own relationship and, more significantly, over the custody of their children. At the final hearing, each, to say the least, had uncomplimentary things to say about the other. The trial court decided that, under the circumstances, “both [parents] should have a shot of having these kids for a period of time.” For that reason alone, he entered the “rotating” custody award now in question. That determination cannot be approved.
It is well-settled Florida law that split-custody provisions, such as the one entered below, are strongly disfavored and ordinarily may not be sustained. E. g., Hurst v. Hurst, 158 Fla. 43, 27 So. 2d 749 (1946); Unger v. Unger, 306 So. 2d 540 (Fla. 3d DCA 1975); Wonsetler v. Wonsetler, 240 So. 2d 870 (Fla. 2d DCA 1970). The essential reason for this rule lies in the fact that, in the usual case, such an arrangement does not promote what is the only proper concern in custody cases: the best interests of the child. As the supreme court said in the Hurst case, supra, at 27 So. 2d 750:
[T]he question may be . narrowed to the one whether the welfare of the child will be promoted if he is placed with first one parent and then the other, his home life interrupted every half-year. It is thoroughly established that in such circumstances the primary concern of the court is the well-being of the child, and we have grave doubt that an infant three years old can develop normally and thrive if at the end of every six months he is removed from surroundings familiar to him and forced to become accustomed to new ones. The predicament of the child would probably be further complicated by the fact that both parents have remarried.
This doctrine applies with even greater force to this case. The situation confronting the children during each successive period of custody and at and after each exchange would be rendered even more distressing by the fact that their mother and father are so mutually antagonistic. Moreover, in Rudolph v. Rudolph, 146 So. 2d 397 (Fla. 3d DCA 1962), this court made it very clear that, contrary to the judgment below, these considerations may not be overridden by a concern, however well-intended, that justice be done to the parents. At 146 So. 2d 399, we said:
There is no doubt but that the chancellor was attempting by this arrangement to be fair to each of the parties. In custody matters, however, it is not the rights of the parties which are of paramount importance, but the best interests of the minor. Hurst v. Hurst, 158 Fla. 43, 27 So. 2d 749. Divided custody which involves periodic removal from familiar surroundings is not desirable nor conducive to a child’s welfare, [citing cases]
See also, e. g., Lee v. Lee, 43 So. 2d 904 (Fla.1950); Peterseil v. Peterseil, 307 So. 2d 498 (Fla. 3d DCA 1975); Julian v. Julian, 188 So. 2d 896 (Fla. 3d DCA 1966). This is not to say that a divided-custody arrangement may not be approved when justified by some particular circumstances which would tend to ameliorate its undesirable effects. Such factors might include, for example, older and more mature children, parents who live near each other or are willing to cooperate in lessening the impact of the changes in custody, and a division of periods of custody which is related to actual events in the children’s lives, such as between school and holiday periods.2 See, e. g., Dworkis v. Dworkis, 111 So. 2d 70 (Fla. 3d DCA 1959), cert. denied, 115 So. 2d 6 (Fla.1959). See generally Annot., Comment Note — “Split,” “divided,” or “alternate” custody of children, 92 A.L.R.2d 695 (1963). The case at bar, however, involves none of these circumstances, nor any similar one. To the direct contrary, it presents a classic case for the application of the general principle that children should not be divided in half, either physically, as Solomon wisely only proposed, or temporally, as unwisely actually effected in the judgment under review.
We also find merit in the appellant’s claim of error in the requirement that she post a bond “to guarantee the children are not removed from the State of Florida.” Apart from two years spent with her husband in service, Ms. Bienvenu and her family have lived in South Florida all her life. Both she and her fiance are employed in Dade County. There is no evidence that she has violated any court order in the past and, in sum, no basis whatever for believing that she might remove the children from the state. Compare, e. g., Metz v. Metz, 108 So. 2d 512 (Fla. 3d DCA 1959). Based upon “the circumstances of the parties and the nature of the case,” as stated in Sec. 61.-13(4), Fla.Stat. (1977), which authorizes a dissolution court in a proper case to require that security be posted, there was thus no foundation for the bond provision. On this record, it constituted, in effect, an unsupported finding that the appellant was likely to be in contempt of the custody order, and served only to interpose an unjustified financial barrier between the children and their mother. The trial court therefore abused its discretion in entering that portion of the judgment below.
We do not agree with the appellant’s final contention that the custody of the children must be awarded to her. The issue of which of the two parents should be granted custody should be initially considered and ruled upon by the trial court after remand. In making that determination, the court may take such further testimony, bearing upon the best interests of the children, as it deems advisable.
The custody provisions of the final judgment under review are therefore reversed and the cause is remanded for further proceedings consistent herewith.
Reversed and remanded.
. Because the rotating custody was to remain in effect only until the older child reached the age of six, the wife has taken an “interlocutory” appeal pursuant to Fla.R.App.P. 9.130(a)(3-)(C)(iii). Since, however, the award in question was contained in the final judgment, only a plenary appeal under Fla.R.App.P. 9.110 is appropriate and, in accordance with Fla.R.App.P. 9.040(c), we have so treated this proceeding.
. The 53/⅜ month period was selected only to avoid the establishment of another “home state” of the children, which might have occurred under the Uniform Child Custody Jurisdiction Act, §§ 61.1306(5), 61.1308, Fla.Stat. (1977), if they spent six months in another jurisdiction. We need not belabor our extreme disapproval of basing a ruling which should concern only the welfare of the children upon such a consideration.
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Citator
Cited By (22 total)
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Gerscovich v. Eugenio Alberto Gerscovich, 406 So. 2d 1150 (Fla. 5th DCA 1981)…isitation in the father [citation omitted]. Id. at 399, 400. Rotating custody of a four year old child on the basis of agency reports made from time to time was disapproved in Unger v. Unger, 306 So. 2d 540 (Fla.3d DCA 1975). Bienvenu v. Bienvenu, 380 So. 2d 1164 (Fla.3d DCA 1980) struck down an attempt to rotate custody of children aged two and four between the mother in Florida for five and three-quarter months and the father in Louisiana for five and three-quarter months. Despite this awesome array of ju…
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Nury Agudo v. Marcelo Agudo, 411 So. 2d 249 (Fla. 3d DCA 1982)…n of temporary custody orders. In effect such a procedure of divided custody is one that has been held to be undesirable for the child.” 8 Unger v. Unger, 306 So. 2d 540, 541 (Fla. 3d DCA 1975). See also Scott v. Scott, supra; Bienvenu v. Bienvenu, 380 So. 2d 1164 (Fla. 3d DCA 1980). A fortiori, where the unrebutted testimony (which led to placing the child in the custody of the mother in the first instance and stood unrebutted when the change was made) is that the very change ordered by the court would have…
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Miraglia v. Miraglia, 462 So. 2d 507 (Fla. 4th DCA 1984)…isagree with that declaration and remand for further proceedings. Children should never be used as a substitute for formal psychiatric treatment in order to help transform an unstable and unhappy home into a stable, happy one. Bienvenu v. Bienvenu, 380 So. 2d 1164 (Fla. 3d DCA 1980); and see Sherrod v. Sherrod, 448 So. 2d 1234 (Fla. 1st DCA 1984) and Ashleman v. Ashleman, 381 So. 2d 364 (Fla. 4th DCA 1980). In this regard, the best interests of the children must take precedence over those of their parent or p…
Previewing 3 of 22 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Dworkis v. Dworkis, 111 So. 2d 70 (Fla. 3d DCA 1959)
- Hurst v. Hurst, 158 Fla. 43 (Fla. 1946)
- Eugenia Julian v. Julian, 188 So. 2d 896 (Fla. 2d DCA 1966)
- Metz v. Metz, 108 So. 2d 512 (Fla. 3d DCA 1959)
- Robinson v. Mayme E. Monahan and Paul Hamersmid, 146 So. 2d 397 (Fla. 3d DCA 1962)
- Hanna Iris Rudolph v. Rudolph, 146 So. 2d 397 (Fla. 3d DCA 1962)
- Unger v. Unger, 306 So. 2d 540 (Fla. 3d DCA 1975)
- The Fla. Nat'l Bank OF Jacksonville v. Bisson, 240 So. 2d 870 (Fla. 1st DCA 1970)
- In re the Marriage of Joseph Peterseil v. Peterseil, 307 So. 2d 498 (Fla. 3d DCA 1975)
- Ernal v. State Bev. Dep't, 115 So. 2d 6 (Fla. 1959)