Chid Custody Case Law Regarding Separation of Siblings

11/29/2007 - Category:Divorce - Child Custody - State: FL #13072

Full Question:

I need recent case law on splitting siblings up in a custody case.

Answer:

MATIAS v. MATIAS, 948 So.2d 1021 (Fla.App. 2 Dist. 2007)

Bill John MATIAS, Appellant, v. Melissa Ann MATIAS, Appellee.

No. 2D05-4721.

District Court of Appeal of Florida, Second District.

February 23, 2007.

Appeal from the Circuit Court, Hillsborough County, Monica L. Sierra, J. Page 1022

Elizabeth S. Wheeler of Berg & Wheeler, P.A., Brandon, for Appellant.

Mark G. Rodriguez of Mark G. Rodriguez, P.A., Tampa, for Appellee.

ALTENBERND, Judge.

Bill John Matias, the husband, appeals a final judgment of dissolution of marriage which awarded primary residency of one child to him and primary residency of a second child to the wife, Melissa Ann Matias; required the husband to pay $184.41 per month in child support to the wife; established a retroactive amount of child support and required the husband to pay $200 per month toward the resulting arrearage; and prohibited both parties from relocating the residence of the children beyond a certain geographical area. We find no abuse of discretion in the trial court's custody determinations and affirm this portion of the judgment. We reverse, however, the provisions for child support and remand for reconsideration. We also reverse the relocation provision and direct the trial court to strike it on remand.

The parties separated in the summer of 2002. At that time, the parties' son was eight years old and the parties' daughter was under two years old. By May 2003, when the wife filed the petition for dissolution of marriage, the husband had moved to Naples with the son and the wife remained in Tampa with the daughter. Initially, the wife's petition sought to maintain this arrangement. As the litigation progressed, however, each party sought primary residence of both children. At the time of trial in August 2005, this arrangement had continued for over three years. A child custody investigator recommended that the children's best interest would be served by awarding each parent the primary residence of the child already in their primary care, with a visitation schedule that allowed the children to be together each weekend. The trial court ultimately accepted this recommendation and incorporated it into the final judgment.

We recognize the principle that a court should not generally separate siblings as part of a dissolution of marriage absent compelling circumstances to support doing so. See Myrick v. Myrick, 523 So.2d 172 (Fla. 2d DCA 1988) (citing Arons v. Arons, 94 So.2d 849 (Fla. 1957)). This principle arises out of a recognition that in many cases, splitting children among divorcing parents "will result in further destruction of what is left, after divorce, of th[e] family unit." Arons, 94 So.2d at 853. Here, however, the children, now thirteen and six years old, have been separated and living in the primary residence of their respective parents for more than four years. As the child custody investigator and the court recognized, awarding the primary residence of both children to one parent at this point in time Page 1023 would require a major disruption to the life of one child and would not be in that child's best interest. This case presents compelling circumstances supporting the continued separation of the children, and we certainly find no abuse of discretion in the trial judge's custody determination. In fact, the visitation schedule implemented by the final judgment will ensure that the siblings retain a close bond despite the split in primary residence because they will be together every weekend.

With respect to the child support, however, we are compelled to reverse. At trial, the parties and the court focused primarily on the custody determination. The detailed evidence necessary to make a proper child support calculation under section 61.30, Florida Statutes (2005), was, in part, overlooked. The trial court's attempt to calculate an accurate amount of child support based on the limited evidence available was unsuccessful, and the resulting calculation is not supported by competent, substantial evidence. Most notably, there is insufficient evidence to support the findings regarding the husband's net monthly income, the daycare expenses for the children, and the costs of health insurance and other medical expenses for the children. We therefore reverse the amount of child support and remand for the trial court to readdress the child support based upon the parties' current financial information.

Because the trial court will be recalculating support on remand, it will have to revisit whether to again award child support retroactive to the date the wife filed her petition for dissolution of marriage. We note, however, two concerns with the retroactive award included in the final judgment. First, the trial court did not consider the evidence that the financial circumstances of the parties and the needs of the children had fluctuated during the substantial amount of time that these proceedings were pending. In this case, the calculation supporting a future child support amount may not be appropriate for retroactive support. Second, it is not clear whether the trial court considered the somewhat unique circumstances of this case in establishing the amount of child support and the monthly payments required toward any retroactive award. The final judgment requires the husband, whose net income is approximately $2000 per month, to pay $184.41 in ongoing child support and $200 per month toward the retroactive arrearage. Because the husband is providing the primary residence for one child, any amounts paid affect that child as well as the child in the wife's care. Under these circumstances, the court should consider a less onerous payment toward any retroactive amount to ensure the financial security of both children.

Finally, the parties concede that the restrictions on relocation in the final judgment were not sought by either party or supported by the evidence. Indeed, these parties already reside at a distance in excess of these provisions. We therefore direct the trial court to strike this provision from the final judgment on remand. Both parties have acknowledged that the judgment will now be controlled by the provisions of section 61.13001, Florida Statutes (2006).

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and CANADY, JJ., Concur.

NAIDU v. NAIDU, 854 So.2d 705 (Fla.App. 3 Dist. 2003)

EDITH C. NAIDU, Appellant, v. LESLIE H. NAIDU, Appellee.

Case No. 3D02-2294

District Court of Appeal of Florida, Third District.

Opinion filed August 13, 2003.

Rehearing/Reconsideration Denied September 24, 2003.

An Appeal from the Circuit Court for Miami-Dade County, Victoria Platzer, Judge. Lower Tribunal No. 98-22241. Page 706

Peter S. Adrien, for appellant.

Peter H. Kircher, for appellee.

Before GERSTEN, GREEN, and RAMIREZ, JJ.

PER CURIAM.

Edith C. Naidu, the mother, appeals an order which extends the father Leslie H. Naidu's temporary custody of the minor children pending resolution of the father's petition for modification of child custody. We affirm the trial court's order because it basically maintained the status quo of an arrangement made by the parties themselves.

The parties divorced on October 29, 1998. The mother received primary custody of their two children: Diane, born on November 18, 1985; and David, born on August 20, 1991. In early 2001, the mother approached the father about the children living with him. The parties subsequently agreed to the children living in Arizona with the father for one year, from July 2001 through July 2002.

On July 19, 2002, the father filed an emergency motion to extend temporary custody until his motion to modify permanent custody could be decided. The trial court conducted a hearing on the father's emergency motion on July 23, 2002. The father testified as to the circumstances of the agreement. The trial court then directed that Family Court Services interview the parents and children that evening.

On July 24, 2002, the trial court interviewed Diane in chambers. Diane described her relationship with her mother as terrible; they fought all the time and the mother had slapped her on one occasion and screamed at her constantly. Diane stated that the mother had a better relationship with David, but she was worried about her brother living with the mother.

Ms. Milledge from Family Court Services testified that she had interviewed the parents and children for one hour each the previous evening. She felt it would be in David's best interests to remain in Arizona. He was doing well in school and had a complete family life with his sister, father, the father's girlfriend and her children. The children's Miami psychologist did not feel the children should be separated because they are emotionally very close. There was no danger to David in returning to live with his mother, but he would not Page 707 have the same quality of life because the mother's counterproductive behavior which led to the temporary custody agreement would likely reoccur. The mother testified that she had agreed that Diane could stay in Arizona with the father.In its order of July 26, 2002, the court determined that, because it was agreed that Diane would remain in Arizona, it was warranted to leave both children with the father so that they would not be separated. The court further ordered that the father's petition for modification be set on an expedited basis. However, no hearing has been set to date and the mother has done nothing to expedite a permanent resolution.

We conclude that the trial court did not abuse its discretion by temporarily maintaining the status quo because courts generally try to cause the least amount of disruption in the child's life. There was ample evidence that it was in David's best interests to not be separated from his sister. See Manuel v. Manuel, 489 So.2d 183 (Fla. 1st DCA 1986) (order for temporary modification will be affirmed where the record shows the order is entered on the basis of the child's best interests at the time of the hearing). See also Miller v. Miller, 371 So.2d 565, 566 (Fla. 4th DCA 1979) (the law does not favor separating siblings from each other); Griffith v. Griffith, 627 So.2d 527, 528 (Fla. 2d DCA 1993) ("In a temporary custody order, the trial court determines the best place for the children until the court makes the final decision regarding custody.").

Affirmed.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.



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11/29/2007 - Category: Child Custody - State: FL #13072

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