DWAYNE MAYO, APPELLANT,
v.
JAMIE MAYO, APPELLEE

Fla. 2d DCA | 2012-05-09
No. 2D10-2411
KELLY and BLACK, JJ., Concur.
87 So. 3d 820 Florida District Court of Appeal, Second District (2012) Positive Treatment
Cited by 2 cases

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Synopsis

Dwayne Mayo appeals a trial court's modification order regarding his child's time-sharing schedule. The appellate court reversed because the trial court failed to analyze the child's best interests before modifying the time-sharing arrangement, despite finding a substantial change in circumstances.


Holding

A trial court must consider the best interests of the child when setting a time-sharing schedule after finding a substantial change in circumstances, regardless of the terminology used or whether the court addresses the request for primary residential parent designation.


Headnotes

[1] A trial court must consider the best interests of the child when modifying a time-sharing schedule, even if a substantial change in circumstances has been found.

[2] A substantial change in the parties' de facto time-sharing arrangement constitutes a substantial change in circumstances for the purpose of modifying a parenting plan.

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Key Quotes

“Regardless of the terminology used, the statute requires that once the trial court makes a finding that there is a substantial change in circumstances with regard to the time-sharing schedule, the trial court must consider the best interests of the child in setting that schedule.”

Establishes the core holding that best interests analysis is mandatory upon finding substantial change in circumstances

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Facts & Procedural History

The parties' divorce was finalized before their son started school. The original visitation order included substantial weekday time for the father, bu…

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Opinion of the Court
DAVIS, Judge.

DAVIS, Judge.

Dwayne Mayo, the Former Husband, challenges the trial court’s Supplemental Final Judgment Modifying Parental Responsibility, Visitation, or Parenting Plan/ Time-Sharing Schedule. Because the record reflects that the trial court did not address the best interests of the child with respect to modifying the time-sharing schedule, we reverse.

The parties’ divorce was final prior to their son reaching the age of school attendance. In the original visitation order, a substantial portion of the Former Husband’s time with his son was comprised of weekdays. Once the son started school, the weekday schedule could no longer work and the parties agreed to a different plan without seeking formal modification of their time-sharing arrangement. This schedule operated successfully for a number of years before the Former Wife sought additional child support and the Former Husband requested modification of the custody agreement to formalize a changed time-sharing arrangement and to be named primary residential parent.

In its order, the trial court made the following finding:

The child was [three] years old at the time of the Final Judgment; he is now [twelve] at the end of the month. Since the Final Judgment, the parties have followed a substantially different and expanded time-share schedule. The substantial time-share agreement in itself is a substantial change of circumstances.
*821The Court finds that this substantial change of circumstances applies to the visitation schedule, but not as to a change in the majority time-sharing schedule. As a result, this Court is unable to get to the best interest of the minor child analysis as it pertains to changing majority time-sharing.

It appears that the trial court has confused the terms “visitation” and “time-sharing,” using “visitation” to mean what section 61.13(2)(c), Florida Statutes (2010), refers to as time-sharing1 and using the term “majority time-sharing” when referring to the determination of which party will be the child’s primary residential parent.

Regardless of the terminology used, the statute requires that once the trial court makes a finding that there is a substantial change in circumstances with regard to the time-sharing schedule, the trial court must consider the best interests of the child in setting that schedule. See § 61.13(3).

Accordingly, it was error here for the trial court not to consider the best interests of the child in setting the time-sharing schedule, despite whether the Former Husband also met his burden of showing a substantial change in circumstances regarding his request to be named the primary residential parent.2

We therefore reverse the modification order and remand for the entry of an order setting a time-sharing schedule in keeping with the relief sought by the parties after consideration of the child’s best interests as outlined in section 61.13(3)(a)-(t).3

Reversed and remanded.

KELLY and BLACK, JJ., Concur.


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Citator

Cited By

  • Hardman v. Koslowski, 107 So. 3d 1246 (Fla. 1st DCA 2013)
    …being a visitor in a child's life, and the term ''visitation,” were rendered obsolete under the 2008 amend [*1248] ments to section 61.13, Florida Statutes, in favor of a policy promoting shared parenting via a parenting schedule. See Mayo v. Mayo, 87 So. 3d 820 (Fla. 2d DCA 2012); Bainbridge v. Pratt, 68 So. 3d 310 (Fla. 1st DCA 2011). However, the dissolution order in this case was entered in 2004, prior to the statutory policy changes. In addition, the extensive post-dissolution history, including the de…

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