Chid Custody Case Law Regarding Separation of Siblings

Full Question:

I need recent case law on splitting siblings up in a custody case.
11/29/2007   |   Category: Divorce ยป Child Custody   |   State: Florida   |   #13072

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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