Posted By Posted by Blair Chan on Nov 7, 2014 6:12am PST || Nov 7, 2014
In a contested custody case, where a trial judge does not believe that either parent's proposed parenting plan is in the best interest of the child, should the trial judge have discretion to create their own timesharing schedule? A recent case answers this question with "no."
In Krift v. Obenour, 2014 Fla.App. 1909, from the Fourth District Court of Appeals, the parents lived over 200 miles apart. At trial, the father requested that the child spend three days each week with him and 4 days with the mother. The mother requested that she child live primarily with her and have timesharing with the father on alternate weekends and extended time in the Summer months.
The trial court rejected both parents' proposed schedules and instead decided that it was in the child's best interest to adopt a rotating timesharing schedule where the child would spend 2 months with each parent. Neither party requested such a schedule in their pleading and this schedule was never discussed at trial. It appeared to come completely "out of the blue."
The appellate court held that the parents' due process rights had been violated when this schedule was thrust upon them and they were not given notice or an opportunity to present evidence against this contingency. This case seems to limit a Court's authority to craft its own schedule and encourage the Court to choose between schedules proposed by the parents.