DEBRA SUE SCOTT, APPELLANT,
v.
ANGUS M. SCOTT, JR., APPELLEE
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A Florida appellate court reversed a trial court's rotating custody arrangement awarding a three-year-old child to the father in March, June, September, and December, and to the mother in other months, finding no circumstances justified this arrangement and that it was not in the child's best interests. The court also reversed the trial court's denial of the mother's request for alimony and attorney's fees, finding the request was properly pleaded.
A rotating custody arrangement is not justified by a finding that both parents are less than ideal and should be reversed because there is no circumstance showing it would be in the child's best interests. The trial court's ruling precluding the mother from seeking alimony and attorney's fees should be reversed because the wife's answer to the second amended complaint properly requested this relief and an earlier stipulation reserved her right to do so.
[1] A rotating custody provision is improper when there is no evidence that it serves the best interests of the child.
[2] A trial court abuses its discretion by imposing a rotating custody arrangement when the only justification is that both parents are less than ideal.
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Join FLexlaw to unlock all legal intelligence“There is not the slightest circumstance shown in the record which would tend to show that this rotating custody provision would be in the best interests of the child”
Establishes the court's fundamental objection to the trial court's custody arrangement and the lack of factual support for it.
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Join FLexlaw to unlock all legal intelligenceIn a dissolution of marriage, the trial court awarded custody of the parties' three-year-old child on a rotating basis: the father would have custody …
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DANIEL S. PEARSON, Judge.
The final judgment of dissolution of marriage gave to the appellee-father custody of the parties’ three-year-old child during the months of March, June, September and December, and gave the appellant-mother custody of the child during the remaining months.1 There is not the slightest circumstance shown in the record which would tend to show that this rotating custody provision would be in the best interests of the child, and, indeed, the only justification advanced on behalf of this peripatetic arrangement is that both parents were found to be, euphemistically, less than ideal. That finding may justify some other suitable custody order, but it hardly justifies plaguing the child with both their houses. There being no circumstance which would ameliorate the undesirable effects of the rotating custody arrangement, and every circumstance which would exacerbate such undesirable effects, the custody provision of the final judgment is reversed, see Bienvenu v. Bienvenu, 380 So. 2d 1164 (Fla.3d DCA 1980), and cases cited therein, and the cause remanded to the trial court for a determination of custody in accordance with the present best interests of the child.2
We also reverse the ruling of the trial court precluding the appellant-wife from seeking alimony or attorneys’ fees on the ground that she had not sought this relief in an appropriate pleading before the court. It is apparent that the wife’s answer to the second amended complaint requested this precise relief and that an earlier written stipulation between the parties reserved to her the right to seek this relief. There is absolutely no showing that Mr. Scott was prejudiced by the lateness of the answer, and, indeed, the financial circumstances of the parties were in issue before the court in the context of child support.
Reversed and remanded for further proceedings in accordance with this opinion.
. The judgment, perhaps to avoid the impact of the rule disfavoring split-custody provisions, see Bienvenu v. Bienvenu, infra, calls for the four separate months to be spent with the father “visitation.” We call it custody, and counsel for the father concedes it is.
. During the progress of this appeal, we permitted the matter of custody to be revisited by the trial court in light of circumstances arising after the final judgment was entered. We are apprised by the parties that while matters bearing on this issue have been presented to the trial court, that court has withheld ruling, and the custody provision of the final judgment is still in effect.
Cases With Similar Vibessemantic neighbors from the corpus
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Nury Agudo v. Marcelo Agudo, 411 So. 2d 249 (Fla. 3d DCA 1982)…ht to “custody,” and is not reviewable under Florida Rule of Appellate Procedure 9.130(a)(3)(C) (iii). It is the effect of the change, not the name given it, that determines what it is, see Kelley v. Kelley, 56 So. 2d 439 (Fla.1952); Scott v. Scott, 401 So. 2d 879 (Fla. 3d DCA 1981); Jacobs v. Boss, 304 So. 2d 542 (Fla. 3d DCA 1974), and we hold that the order under review is one which determines custody. We turn now to the wife’s contention that the evidence presented by the husband did not demonstrate a su…
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Frey v. Wagner, 433 So. 2d 60 (Fla. 3d DCA 1983)…eld that the best interests of children are not served by custodial arrangements which require the children to move back and forth between the residences of their parents. See, e.g., Hurst v. Hurst, 158 Fla. 43, 27 So. 2d 749 (1946); Scott v. Scott, 401 So. 2d 879 (Fla. 3d DCA 1981); Bienvenu v. Bienvenu, 380 So. 2d 1164 (Fla. 3d DCA 1980); Wonsetler v. Wonsetler, 240 So. 2d 870 (Fla. 2d DCA 1970); Julian v. Julian, 188 So. 2d 896 (Fla. 2d DCA 1966); Rudolph v. Rudolph, 146 So. 2d 397 (Fla. 3d DCA 1962). See…
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Gerner v. Gerner, 529 So. 2d 1226 (Fla. 3d DCA 1988)…ot overcome the strong presumption that rotating the primary physical residence of children is not in their best interests. Frey v. Wagner, 433 So. 2d 60 (Fla. 3d DCA 1983). See also Hurst v. Hurst, 158 Fla. 43, 27 So. 2d 749 (1946); Scott v. Scott, 401 So. 2d 879 (Fla. 3d DCA 1981); Bienvenu v. Bienvenu, 380 So. 2d 1164 (Fla. 3d DCA 1980); Peterseil v. Peterseil, 307 So. 2d 498 (Fla. 3d DCA 1975). The case is remanded for the purpose of reinstating the custody provisions of the final judgment. On remand th…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bienvenu v. Bienvenu, 380 So. 2d 1164 (Fla. 3d DCA 1980)