ISLANDA CARABALLO, APPELLANT,
v.
JESUS MANUEL HERNANDEZ, APPELLEE

Fla. 4th DCA | 1993-08-18
No. 92-3359
GUNTHER and KLEIN, JJ., concur.
623 So. 2d 563 Florida District Court of Appeal, Fourth District (1993) Negative Treatment
Cited by 8 cases

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Holding

Rotating custody is presumptively not in the best interests of a child and requires special circumstances to justify.


Headnotes

[1] Rotating physical custody is presumptively not in the best interests of a child.

[2] A child's need to switch schools yearly constitutes a disruptive influence that weighs against rotating physical custody.

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Facts & Procedural History

Following a dissolution of marriage, the trial court awarded rotating physical custody of the parties' minor child. The award was based on the mistake…

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Opinion of the Court
POLEN, Judge.

POLEN, Judge.

The former wife appeals from an amended final judgment of dissolution of marriage, ordering rotating physical custody of the parties’ minor child. We reverse.

On May 22, 1991, the former wife filed a petition for dissolution of marriage seeking permanent custody of the parties’ then eight year old son. The former husband sought permanent custody as well. At the time of the trial, both parties resided in Pompano Beach, Florida, approximately three miles from each other. The trial was held on September 8, 1992. The parties were the only witnesses. After approximately ninety minutes of testimony the trial court found that the parties were both excellent parents who were deeply concerned with the welfare of their child. The court then awarded annual rotating custody at the end of each school year based upon the age of the child, the former husband’s concern for the child, the close proximity of the parties’ residences, and the assumption that the child would continue to attend the same school, despite the annual changes in residency.

Appellant argues the trial court’s award of joint custody, with primary residence on an annual rotating basis, constitutes an abuse of discretion. Although we uphold the trial court’s order with respect to the award of joint custody, we reverse with respect to the annual rotation of the child’s primary residence.

This court has long recognized the trial court’s broad discretion in resolving custody matters. Bolton v. Gordon, 201 So. 2d 764 (Fla. 4th DCA1967). However, in this instance we must adhere to the rule recognized in Florida, that rotating custody is presumptively not in the best interests of the child. We recognize there may be special circumstances which justify rotating custody. Such circumstances include:

1. The child’s age and stated preference.

2. The length of each period of custody.

3. The disruptive influences created by alternating custody, including the distance that must be travelled.

4. The parents’ attitude toward each other, and how these attitudes might affect the children.

Parker v. Parker, 553 So. 2d 309 (Fla. 1st DCA1989).

The majority of these circumstances are not present in the instant matter. First, both the trial transcript and amended final judgment indicate that the rotating custody award was based upon the trial court’s mistaken conclusion that both parents resided in the same school district, and the child would continuously attend the same school. There is no evidence in the record to support this conclusion. In fact, the former wife filed as an exhibit to her motion for rehearing and reconsideration, a letter from the Broward County School Board indicating that the parents’ residences were located in different school districts.

Requiring an eight year old child to switch schools yearly is clearly a disruptive influence indicating that rotating physical custody is not in the best interests of the child. See Wilking v. Reiford, 582 So. 2d 717 (Fla. 5th DCA1991) (where the court reversed a rotating custody award, concluding that the parents lived in two different school districts, and it is not in the best interests of the child to switch schools, make new friends and readjust to a different curriculum at a different school); compare Parker v. Parker, 553 So. 2d 309 (Fla. 1st DCA1989) (where the court awarded rotating custody but only until the child reached school age).

There is also no evidence in the record of the child’s stated preference for rotating custody. See Gerscovich v. Gerscovich, 406 So. 2d 1150 (Fla. 5th DCA1981) (where the court awarded rotating custody of an eleven and thirteen year old child based upon their stated preference, taking into account their relative maturity).

Finally, there is no evidence to indicate that the parties harbor negative attitudes or hostility toward each other. Such animosity has justified rotating custody. See Parker, 553 So. 2d at 311 (where the court justified an award of rotating custody because of the prolonged period the mother could not be with the children, and that they were shielded from her existence); see also Sullivan v. Sullivan, 604 So. 2d. 878, 879 (Fla. 1st DCA1992) (where the court awarded rotating custody based on the mother’s hostility toward the father, that she was trying to turn the children against the father, her attitude in court, and her refusal to allow the father visitation). In the instant matter, the court found that the parties’ attitudes toward each other were good. Thus, this consideration would not warrant a departure from the presumption that rotating custody is not in the best interest of the child.

Additionally, both parties provided to the court by notice of supplemental authority Bergmann v. Bergmann, 617 So. 2d 469 (Fla. 4th DCA1993), and Pfeifer v. Pfeifer, 616 So. 2d 1190 (Fla. 4th DCA1993). This court’s opinions in both cases are based on specific factual scenarios and do not affect our current holding.

Accordingly, we find that there are no special circumstances to justify an award of rotating custody. We reverse the lower court’s order rotating the primary residence of the parties’ minor child, and remand for further consideration as to the child’s primary residence.

GUNTHER and KLEIN, JJ., concur.


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Citator

Cited By

  • Corey v. Corey, 29 So. 3d 315 (Fla. 3d DCA 2009)
    …rotating child custody is presumptively not in the best interest of the children.”); Langford v. Ortiz, 654 So. 2d 1237, 1238 (Fla. 2d DCA 1995) (“Rotating custody ... is presumptively not in the best interest of a child.”); Caraballo v. Hernandez, 623 So. 2d 563 (Fla. 4th DCA 1993) (adhering to rule that rotating custody is [*319] presumptively not in the best interest of the child); Wilking v. Reiford, 582 So. 2d 717, 719 (Fla. 5th DCA 1991) (“Generally, rotating custody is presumptively not in the best in…
  • Boardman v. ROY, 775 So. 2d 334 (Fla. 2d DCA 2000)
    …custody. This we conclude was error. The Fourth District has cited animosity between the parents as a factor that overcomes the presumption against rotating custody. See Bracken v. Bracken, 704 So. 2d 746 (Fla. 4th DCA 1998); Caraballo v. Hernandez, 623 So. 2d 563 (Fla. 4th DCA 1993). But several courts, including this one, have recognized that a hostile environment would actually jeopardize a rotating custody arrangement. “[T]he animosity of the parties and the way they were trying to use the child in a poss…
  • O'Brien v. Crumley, 695 So. 2d 881 (Fla. 5th DCA 1997)
    …gner, 433 So. 2d 60 (Fla. 3d DCA 1983). However, the best interest of the child is the final determining factor and special circumstances may justify the arrangement. See Langford v. Ortiz, 654 So. 2d 1237 (Fla. 2d DCA 1995); Caraballo v. Hernandez, 623 So. 2d 563 (Fla. 4th DCA 1993); Parker v. Parker, 553 So. 2d 309 (Fla. 1st DCA 1989). The witnesses in this case including the Guardian Ad Litem, and the court appointed clinical psychologist, testified that the arrangement was not disruptive to the child, tha…

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