KIMBERLY B. O'BRIEN, APPELLANT/CROSS-APPELLEE,
v.
DAVID A. CRUMLEY, APPELLEE/CROSS-APPELLANT
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In this custody dispute, the Fifth District Court of Appeal affirmed a trial court's award of rotating custody to both parents and final decision-making authority to the father, but remanded the case for consideration of child support. The court held that rotating custody, though presumptively disfavored, is appropriate when special circumstances exist and the arrangement serves the child's best interests.
The trial court did not abuse its discretion in ordering rotating custody because the child was thriving in the arrangement and special circumstances justified it despite the presumption against rotating custody. The court properly vested final decision-making authority in the father given the mother's past unwillingness to communicate. The specification of areas for the father's authority was sufficiently clear. However, the trial court erred by failing to address child support, requiring remand for consideration of whether an award is appropriate under the statutory guidelines.
[1] Rotating custody is presumptively disfavored as not being in the best interest of the child, but special circumstances may justify the arrangement when it is not disrupti…
[2] A trial court is justified in vesting final decision-making authority in one parent when the other parent has demonstrated an unwillingness to communicate on certain matt…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Rotating custody is presumptively disfavored as not being in the best interest of the child [...] However, the best interest of the child is the final determining factor and special circumstances may justify the arrangement.”
Establishes the legal standard for rotating custody, acknowledging the presumption against it while allowing exceptions based on the child's best interests and special circumstances.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe parties' child had been in a rotating custody arrangement prior to trial, with each parent having custody during portions of each week. Evidence s…
The full statement of facts, procedural history, and disposition for this case are member content.
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PETERSON, Chief Judge.
Kimberly B. O’Brien, the mother, asserts that the trial court abused its discretion by ordering rotating custody of the parties’ child, awarding final decision-making authority to the father, and by failing to award child support to her. David A. Crumley, Jr., the father, in his cross-appeal, asserts that while the trial court justifiably granted final decision-making authority to him, the trial court should have designated the specific areas to which the authority applied.
The schedule of rotating custody in this case allowed each of the parents to have custody during a portion of each week. The evidence reflected that the child had adjusted well to the rotating custody that had been in effect prior to the trial court’s order; in fact, there was evidence that the child thrived in the arrangement. Rotating custody is presumptively disfavored as not being in the best interest of the child. Wilking v. Reiford, 582 So. 2d 717 (Fla. 5th DCA 1991); Elebash v. Elebash, 450 So. 2d 1268 (Fla. 5th DCA 1984); Frey v. Wagner, 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, that the child was doing remarkably well, that the child has close ties with both parents and a loving relationship with both of them. Only the mother opined that the arrangement was unsuitable but she was unable to specify any adverse effects resulting from the arrangement. Accordingly, we see no abuse of discretion by the trial court and affirm the custody arrangement.
We find the trial court was justified in vesting the final decision-making authority in the father particularly in view of the evidence pertaining to the mother’s unwillingness in the past to communicate with the father on certain matters after repeated requests to do so and find no error in the manner in which the trial court specified the areas in which the father’s final decision making authority shall apply.
The subject of child support is not mentioned in the final judgment and the mother asserts she is entitled to such support from the father, notwithstanding the rotating custody arrangement. We agree that support needs to be considered by the trial court and section 61.30(l)(a), Florida Statutes (1995), requires a written finding. Rotating custody is contemplated in the guidelines in section 61.30(ll)(g) and we remand to determine whether an award is appropriate, and if so, the amount. See Hardy v. Hardy, 659 So. 2d 1246 (Fla. 1st DCA 1995).
AFFIRMED and REMANDED.
DAUKSCH and GOSHORN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Williams v. State, 553 So. 2d 309 (Fla. 1st DCA 1989)
- Elebash v. Elebash, 450 So. 2d 1268 (Fla. 5th DCA 1984)
- Langford v. Ortiz, 654 So. 2d 1237 (Fla. 2d DCA 1995)
- Parker v. Reonna T. Parker, 553 So. 2d 309 (Fla. 1st DCA 1989)
- Frey v. Wagner, 433 So. 2d 60 (Fla. 3d DCA 1983)
- Wilking v. Reiford, 582 So. 2d 717 (Fla. 5th DCA 1991)
- Islanda Caraballo v. Hernandez, 623 So. 2d 563 (Fla. 4th DCA 1993)
- Ira Glynn Hardy v. Loretta Vesta (Powell) Hardy, 659 So. 2d 1246 (Fla. 1st DCA 1995)