BARBARA GRIMALDI, APPELLANT/CROSS-APPELLEE,
v.
EUGENE GRIMALDI, APPELLEE/CROSS-APPELLANT
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In this family law appeal, the Fourth District Court of Appeal addressed whether the trial court properly modified custody from shared parental responsibility to sole parental responsibility. The court affirmed most of the trial court's order but reversed and remanded the custody modification because the trial court failed to make an explicit statutory finding that shared parental responsibility would be detrimental to the child.
Florida Statutes section 61.13(2)(b)2 mandates that courts must make a specific finding that shared parental responsibility would be detrimental to the child before awarding sole parental responsibility, and this requirement applies equally to modification proceedings. The trial court's finding that the mother was incapable of meaningful parental responsibility and that sole responsibility was in the child's best interests does not satisfy the statutory requirement of a detriment finding.
[1] A trial court must make a specific finding that shared parental responsibility would be detrimental to the child before awarding sole parental responsibility.
[2] The statutory requirement for a finding of detriment to the child before awarding sole parental responsibility applies to modification proceedings.
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Join FLexlaw to unlock all legal intelligence“The court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child.”
Establishes the statutory presumption favoring shared parental responsibility and the requirement for a specific detriment finding before awarding sole responsibility
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Join FLexlaw to unlock all legal intelligenceThe parties were divorced under a 1993 final judgment incorporating a marital settlement agreement that provided for shared parental responsibility of…
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STEVENSON, J.
This is an appeal by the former wife and a cross appeal by the former husband from the trial court’s order ruling on the former husband’s petition for modification of child support, visitation, and alimony. Although both parties have raised a number of issues, we affirm the order in all respects except that portion changing the custodial designation from shared parental responsibility to sole parental responsibility in favor of the husband, which issue we remand for additional findings as discussed below.
The 1993 final judgment of dissolution incorporated the terms of the parties’ marital settlement agreement, which inelud-ed a provision directing that the parties have shared parental responsibility for the minor child. After the hearing on the petition for modification, the trial court entered an order altering the custody designation from shared parental responsibility to sole parental responsibility. Because there is evidence in the record to support the trial judge’s finding, we reject the former wife’s contention that the former husband failed to demonstrate a substantial change in circumstances since the time of the dissolution. However, we find merit in the former wife’s argument that the trial court erred in changing the custody designation, placing sole parental responsibility in the former husband, without making a finding on the record that shared parental responsibility would be detrimental to the child.
Florida Statutes section 61.13(2)(b)2 states in relevant part that “[t]he court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child.” The requirement that a trial court make a specific finding of detriment to the child before awarding sole parental responsibility is equally applicable to modification proceedings. In Hunter v. Hunter, 540 So. 2d 235 (Fla. 3d DCA 1989), the Third District held that, while it could find no basis in the record for overturning the trial court’s ruling modifying the custody designation from shared parental responsibility to sole parental responsibility in favor of the former wife, it was nonetheless constrained to remand the case to the trial court because “the trial court erred in awarding sole parental responsibility to the mother absent a specific finding that ‘shared parental responsibility would be detrimental to the children.’ ” See also Griffin v. Griffin, 665 So. 2d 352 (Fla. 1st DCA 1995); Hicks v. Hicks, 511 So. 2d 628 (Fla. 2d DCA 1987); Nichols v. Nichols, 432 So. 2d 648 (Fla. 1st DCA 1983).
While we recognize that the trial court did find that the former wife, due to an illness, is “not capable of exercising parental responsibility in any meaningful way” and that sole parental responsibility was in the child’s best interests, these findings are not equivalent to a finding that shared parental 'responsibility is, in fact, detrimental to the child. Accordingly, we reverse that portion of the order changing the custody designation from shared parental responsibility to sole parental responsibility and remand so that the trial court may make a finding regarding whether shared parental responsibility is detrimental to the child. On remand, the court may, in its discretion, either take additional evidence or rule on the record presently available.
REVERSED and REMANDED.
POLEN, J., and BROWN, LUCY CHERNOW, Associate Judge, concur.
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Schram v. Schram, 932 So. 2d 245 (Fla. 4th DCA 2005)…61.13(2)(b)2 requires that a trial court ‘shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child.’ ” Grimaldi v. Grimaldi, 721 So. 2d 820, 821 (Fla. 4th DCA 1998). Because the trial court failed to make a specific finding that shared parental responsibility would be detrimental to the children, the trial court erred in awarding sole parental responsibility to former wife. In accordanc…
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Ogilvie v. Ogilvie, 954 So. 2d 698 (Fla. 1st DCA 2007)…2d 1251, 1253 (Fla. 3d DCA 1995); Kelly v. Kelly, 642 So. 2d 800, 802 (Fla. 2d DCA 1994), to the extent they imported into the best interest prong a "detriment” or "adverse impact” component. Wade, 903 So. 2d at 933-34. But see Grimaldi v. Grimaldi, 721 So. 2d 820, 821-22 (Fla. 4th DCA 1998) (reversing trial court’s modification of custody from shared parental responsibility to sole parental responsibility where the evidence did not show that shared parental responsibility was detrimental to the child, quotin…
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Aranda v. Linnette Padilla, 216 So. 3d 652 (Fla. 4th DCA 2017)…standard does not obviate the necessity of a specific finding that shared parental responsibility would be detrimental to the child before awarding sole parental responsibility to a parent.” Maslow, 886 So. 2d at 1028; see also Grimaldi v. Grimaldi, 721 So. 2d 820, 821-22 (Fla. 4th DCA 1998) (holding that the trial court’s finding that the former wife, due to illness, was not capable of exercising parental responsibility in any meaningful way, and that sole parental responsibility was in the child’s best inte…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hunter v. Hunter, 540 So. 2d 235 (Fla. 3d DCA 1989)
- Hicks v. Hicks, 511 So. 2d 628 (Fla. 2d DCA 1987)
- Nichols v. Nichols, 432 So. 2d 648 (Fla. 1st DCA 1983)
- Griffin v. Griffin, 665 So. 2d 352 (Fla. 1st DCA 1995)