MARSHALL FREY, APPELLANT,
v.
CYNTHIA WAGNER, APPELLEE
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This case addresses whether the "Shared Parental Responsibility Act" mandates alternating physical residence for children. The court held that while shared parental responsibility is presumed to be in a child's best interest, alternating physical residence is not, and can be detrimental to children's well-being.
No, the "Shared Parental Responsibility Act" does not mandate alternating physical residence. While shared parental responsibility is presumed to be in a child's best interest, alternating residence is not, and courts have consistently held such arrangements to be detrimental to children.
[1] Shared parental responsibility does not mandate alternating physical residences for children.
[2] Custodial arrangements requiring children to move back and forth between parents' residences are generally not in the children's best interests.
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Join FLexlaw to unlock all legal intelligence“Despite the existence of overwhelming evidence that alternating the physical residence of the three minor children of the parties between the mother and father was,1 and would be, detrimental to the emotional and psychological well-being of the children and created confusion in the children and a lack of stability and consistency in their lives, the trial court, in an obvious effort to be fair to the parents and with the apparent view that the recent amendment to Section 61.13, Florida Statutes (1982) (commonly known as the “Shared Parental Responsibility Act”), required not only shared parental responsibility, but also divided residence, ordered, inter alia:”
Establishes the trial court's order and the evidence of detriment to the children.
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Join FLexlaw to unlock all legal intelligenceThe trial court ordered alternating physical residence of three minor children between their mother and father on a six-month basis, despite evidence …
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PER CURIAM.
Despite the existence of overwhelming evidence that alternating the physical residence of the three minor children of the parties between the mother and father was,1 and would be, detrimental to the emotional and psychological well-being of the children and created confusion in the children and a lack of stability and consistency in their lives, the trial court, in an obvious effort to be fair to the parents and with the apparent view that the recent amendment to Section 61.13, Florida Statutes (1982) (commonly known as the “Shared Parental Responsibility Act”), required not only shared parental responsibility, but also divided residence, ordered, inter alia:
“2. PRIMARY RESIDENTIAL PARENT: The parties shall be joint primary, physical residential parents of the three children with the following residential schedule.
“A. August 1982 the children shall reside with the father. “B. September 1982 the children shall reside with the mother. “C. October 1982, November 1982, and December 1982, the children shall reside with the father. “D. January 1982 [sic], February 1982 [sic], and March 1983, the children shall reside with the mother. “E. April 1983, May 1983, June 1983, July 1983, August 1983, and September 1983, the children shall reside with the father. “F. October 1983, November 1983, December 1983, January 1984, February 1984, and March 1984, the children shall reside with the mother. “G. And thereafter the mother and the father shall continue the aforementioned six month residential program as indicated above in paragraph 2E and 2F. “4. VISITATION: While the children are with the other party as the residential parent, the non-residential parent shall have visitation rights as follows:
“A. One sleep overnight per week which shall be on Wednesday of each and every week. The non-residential parent shall pick up the children at school on Wednesday and the children shall stay overnight at the non-residential parent’s house. The non-residential parent shall deliver the children to school the following Thursday morning.
“B. The non-residential parent shall have the children on alternating weekends. The non-residential parent shall pick up the children at school on Friday after school and shall have the children until Sunday before dinner, then return the children to the residential parent Sunday before dinner. This weekend schedule shall alternate every other weekend.”
While Section 61.13, Florida Statutes (1982), does mandate that parental responsibility of minor children shall be shared in the absence of a finding, not present here, that shared parental responsibility would be detrimental to the children, § 61.13(2)(b)2, it does not mandate that the physical residence of the children is to be shifted back and forth between the parents as a necessary concomitant of shared parental responsibility. Indeed, the statute itself envisions that there is to be a primary physical residence for the children, the place of which is to be determined by reference to the nonexclusive factors enumerated in Section 61.-13(3).
Thus, although the best interests of the children in the present case may be well served by ordering that parental responsibility be shared, that is, that “both parents retain full parental rights and responsibilities with respect to their [children] and .. . confer so that major decisions affecting the welfare of the child will be determined jointly,” § 61.13(2)(b)2.a, their best interests were not, under the evidence in this record, well served by attempting to accom plish this goal by alternating the children’s primary physical residence.
Courts of this state have consistently held 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 also Agudo v. Agudo, 411 So. 2d 249 (Fla. 3d DCA), rev. denied, 418 So. 2d 1278 (Fla.1982) (successive temporary custody arrangements); Unger v. Unger, 306 So. 2d 540 (Fla. 3d DCA 1975) (same).
The Shared Parental Responsibility Act is not, as appellee contends, a legislative repeal of these cases or a declaration that rotating the residences of children is in their best interest. Sharing parental rights and responsibilities is now presumptively in the best interest of children; rotating the primary physical residence of children remains presumptively not in their best interest. See Bienvenu v. Bienvenu, 380 So. 2d 1164 (Fla. 3d DCA 1980) (a divided custody arrangement may be approved when justified by some particular circumstance which would tend to ameliorate its undesirable effects).
Accordingly, the final judgment is reversed insofar as it makes the parties “joint primary physical residential parents” with directions that the trial court determine which parent shall be the children’s primary residential parent with reasonable rights of visitation in the parent who is not the primary residential parent.
Reversed in part and remanded.
. While the proceedings were pending, the custody of the children was alternated between the parents on a weekly basis.
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Citator
Cited By (11 total)
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Elebash v. Elebash, 450 So. 2d 1268 (Fla. 5th DCA 1984)…single authority.” The shared parental responsibility statute does not mandate that the physical residence of the minor children be rotated between parents and such rotation is presumptively not in the best interest of children. See Frey v. Wagner, 433 So. 2d 60 (Fla. 3d DCA 1983). Also see Strickland v. Wedekind, 436 So. 2d 250 (Fla. 5th DCA 1983); Alonso v. Alonso, 432 So. 2d 174 (Fla. 3d DCA 1983). The final judgment in this case shows the careful and conscientious consideration of the trial judge of bo…
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In the Interest of S.M.H., 531 So. 2d 228 (Fla. 1st DCA 1988)…o spend two consecutive weeks each month with the father. Shared parental responsibility of minor children as provided for in Section 61.-13 does not contemplate the shifting back and forth of the physical residence of the children. Frey v. Wagner, 433 So. 2d 60 (Fla. 3rd DCA 1983). In fact, Section 61.-13(2)(b) provides for a “primary physical residence” for the children. Rotation of the physical residence of children is presumptively not in their best interest. Frey v. Wagner, supra; Elebash v. Elebash, 4…
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Skirko v. Skirko, 677 So. 2d 885 (Fla. 3d DCA 1996)…residences of their parents - Sharing parental rights and responsibilities is now presumptively in the best interest of children; rotating the primary physical residence of children remains presumptively not in their best interest. Frey v. Wagner, 433 So. 2d 60, 62 (Fla. 3d DCA 1983) (citations omitted); see also, Bienvenu v. Bienvenu, 380 So. 2d 1164 (Fla. 3d DCA 1980)(“It is well-settled Florida law that split-custody provisions ... are strongly disfavored and ordinarily may not be sustained. The essenti…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hurst v. Hurst, 158 Fla. 43 (Fla. 1946)
- Bienvenu v. Bienvenu, 380 So. 2d 1164 (Fla. 3d DCA 1980)
- Eugenia Julian v. Julian, 188 So. 2d 896 (Fla. 2d DCA 1966)
- Nury Agudo v. Marcelo Agudo, 411 So. 2d 249 (Fla. 3d DCA 1982)
- 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)
- Scott v. Angus M. Scott, Jr., 401 So. 2d 879 (Fla. 3d DCA 1981)