TERESA YARBORO MANCUSO, APPELLANT,
v.
CRAIG PETER MANCUSO, APPELLEE
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In a dissolution of marriage case, the wife appealed the trial court's final judgment, which included a rotating custody arrangement for a 15-month-old child based on a marital settlement agreement. The court affirmed the trial court's procedural rulings but remanded the case because the trial court failed to independently review whether the rotating custody provision was in the child's best interest, as required by Florida law.
The trial court erred by failing to make the required finding that rotating custody is in the child's best interest. Even when parties agree to rotating custody in a marital settlement agreement, the trial court must independently review the arrangement against the statutory best-interest standard and the presumption that rotating primary residence is not in a child's best interest.
[1] A trial court must make a finding that rotating custody is in the best interest of the child, even if such an arrangement is stipulated in a marital settlement agreement.
[2] Florida courts recognize a presumption that rotating the primary residence of a child is not in the child's best interest.
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“section 61.121, Florida Statutes (1997), requires that the trial court make a finding that rotating custody is in the best interest of the child.”
Establishes the mandatory statutory requirement for trial court review of rotating custody arrangements regardless of parental agreement.
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Join FLexlaw to unlock all legal intelligenceThe husband filed for dissolution of marriage claiming a marital settlement agreement had settled all issues. The wife disputed this. The agreement pr…
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TAYLOR, J.
The husband filed an amended petition for dissolution of marriage, in which he alleged that a marital settlement agreement had settled all issues between the parties. The wife denied that allegation in her answer to the amended petition.
In this appeal from the final judgment of dissolution of marriage, the wife contends that the trial court erred in conducting the final hearing without complying with the trial notice and setting procedures of Rule 12.440 of the Florida Family Law Rules of Procedure. She further complains that the trial court abused its discretion in denying her request for a continuance of the final hearing after allowing her attorney to withdraw just an hour before the hearing.
We affirm on these points, but remand this case to the trial court for further proceedings on child custody provisions.
The trial court ordered rotating custody of the 15 month old minor child of the marriage every forty-eight hours. This provision was based on a rotation schedule established in the marital settlement agreement. The agreement called for shared parental responsibility and shared primary physical residence for the child. Until the child’s second birthday, the child was to be rotated between the parents’ respective households every 48 hours. During the child’s third year, the rotation was to occur every 72 hours, and thereafter, the rotation was to be weekly. At the final hearing, the wife protested that this arrangement was not in the child’s best interest.
However, the trial judge said that the rotation provision was not subject to her review at the final hearing and that she could not question their agreement. On the contrary, section 61.121, Florida Statutes (1997), requires that the trial court make a finding that rotating custody is in the best interest of the child.
In light of the long-standing presumption that rotating the primary residence is not in the best interest of the child, the trial court should carefully examine a marital settlement agreement providing for such an arrangement and exercise its discretion in determining whether it is in the child’s best interest. See Bracken v. Bracken, 704 So. 2d 746, 747 (Fla. 4th DCA 1998). See also Mandell v. Mandell, 741 So. 2d 617, 618 (Fla. 2d DCA 1999)(holding that section 61.121 did not set aside the long held presumption that rotating custody is not in the best interest of a minor child).
Florida courts have identified several factors that a trial court should consider in determining whether the circumstances overcome the presumption against rotating the primary residence: (1) the age and maturity of the child; (2) whether the child is in school; (3) the proximity of the parents’ residences; (4) the child’s preferences; (5) the disruptive effect of the rotation on the child; (6) the reasonableness of the periods of time spent with each parent; (7) the relation of the periods of custody to divisions in the child’s life, such as the school year, and (8) the parents’ attitude toward one another or how their attitude will be perceived by the child. Bracken, 704 So. 2d at 747 (citing Langford v. Ortiz, 654 So. 2d 1237, 1238 (Fla. 2d DCA 1995)); MacConnell v. Cascante, 668 So. 2d 668, 670 (Fla. 4th DCA 1996).
Here, because the trial judge mistakenly believed that she lacked authority to alter or reject the rotating custody provisions in the marital settlement agreement, she failed to make the necessary findings that rotating custody is in the best interest of the minor child. Accordingly, we remand this cause to the trial court for further proceedings to consider those factors set forth in Bracken and MacConnell and to enter an amended final judgment either setting forth the necessary findings for rotating custody or designating one parent as primary residential custodian. On remand, if necessary, the trial court may revisit child support provisions.
AFFIRMED and REMANDED for proceedings consistent with this opinion.
STONE and GROSS, JJ., concur.
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Moore v. Wilson, 16 So. 3d 222 (Fla. 5th DCA 2009)…en’s best interest. At the time of the trial, section 61.121, Florida Statutes (2007) provided that a court may order rotating custody “if the court finds that rotating custody will be in the best interest of the child.” See also Mancuso v. Mancuso, 789 So. 2d 1249 (Fla. 4th DCA 2001). It appears that the trial court’s decision to order rotating custody was, to a significant degree, influenced by the parties’ “fighting over contact and visitation and lack of communication ... with regard to matters involving t…
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Corey v. Corey, 29 So. 3d 315 (Fla. 3d DCA 2009)…f section 61.121, Florida Statutes. See Ch. 97-242, § 2, at 4437, Laws of Fla. In accordance with each of our sibling courts which have considered the issue, I disagree. See Chapman v. Prevatt, 845 So. 2d 976 (Fla. 4th DCA 2003); Mancuso v. Mancuso, 789 So. 2d 1249 (Fla. 4th DCA 2001); Mandell v. Mandell, 741 So. 2d 617 (Fla. 2d DCA 1999).8 See also Hosein v. Hosein, 785 [*323] So. 2d 703 (Fla. 4th DCA 2001).9 Furthermore, I find no abuse of discretion in the trial court’s determination, after obviously carefu…1 / 4
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Mudafort v. LEE, 62 So. 3d 1196 (Fla. 4th DCA 2011)…She raises three issues on appeal: (1) whether the trial court erred in considering certain relocation factors, which we affirm without further comment; (2) whether the trial court erred in not considering the factors laid out in Mancuso v. Mancuso, 789 So. 2d 1249 (Fla. 4th DCA 2001), when it ordered equal time-sharing; and (3) whether the trial court erred in imputing income to the former wife for child support purposes. We find that the trial court did not err in not considering the Mancuso factors because…
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
- Langford v. Ortiz, 654 So. 2d 1237 (Fla. 2d DCA 1995)
- Mandell v. Mandell, 741 So. 2d 617 (Fla. 2d DCA 1999)
- MacCONNELL v. Starla K. Cascante, 668 So. 2d 668 (Fla. 4th DCA 1996)
- Vidal v. State, 704 So. 2d 746 (Fla. 3d DCA 1998)
- Reid C. Bracken v. Bracken, 704 So. 2d 746 (Fla. 4th DCA 1998)