Holland v. Holland, 83-1134
| Decision Date | 01 November 1984 |
| Docket Number | No. 83-1134,83-1134 |
| Citation | 458 So.2d 81 |
| Parties | In re the Marriage of David HOLLAND, Appellant, v. Debra Ann HOLLAND, Appellee. |
| Court | Florida District Court of Appeals |
Tim Keyser, Interlachen, for appellant.
No appearance for appellee.
This is an appeal from a Final Judgment of Dissolution of Marriage which, in pertinent part, awarded the care, custody and control of the parties' minor children to the mother. Prior to the final hearing the parties filed "Supplemental Marital Settlement Stipulations" which provided for full retention by both parents of their parental rights and responsibilities. At the hearing, counsel for the appellee/wife stated to the Court that she is "unaware of any reason that shared parental responsibility would be detrimental to the children in this case."
After hearing argument from counsel, the Trial Court declined to enter a shared parental responsibility order and awarded care, custody and control of the minor children to the wife. This decision was not based on a finding that shared parental responsibility would be detrimental to the children but on the general proposition that one of the parents must be possessed of the ultimate decision making authority on matters concerning the children. In all other respects the Final Judgment of Dissolution incorporated the stipulations of the parties concerning shared parental responsibility and frequent and continuing contact by the father.
As this Court recently noted in Elebash v. Elebash, 450 So.2d 1268 (Fla. 5th DCA 1984), the trial court does have the authority to decline to follow a settlement agreement between the parties relating to child custody, visitation and support. Sections 61.13(2)(b)2.a., Florida Statutes (Supp.1982) expressly provides that the court may grant to one party the ultimate responsibility over specific aspects of the child's welfare including primary residence, education, medical care and others. It is clear, however, that the law contemplates such decisions being made on a case-by-case basis after an evidentiary finding concerning the best interest of the child. No such finding was made in this case. The trial court said: "I will not enter a shared parental responsibility order ..." and explained its refusal to enter an order of shared parental responsibility by stating, in part:
... the Legislature has no power under the Constitution of the State of Florida to mandate my use of my judicial discretion .... I find that the right to make the ultimate decision concerning the care of the child, medical consents, school consents, in the event that the parties are unable to reach an agreement, must ultimately rest with one person; and for that reason I do not enter an order of the type you seek to enter. ... what I will do, I will enter an order awarding the primary custody to one parent. I will then enter all of the remaining paragraphs ... and in every respect except that of having the ultimate responsibility rest with one person, it would read identically with the shared parental responsibility provisions of the Legislative act.
Section 61.13(2)(b)2, Florida Statutes (Supp.1982) states:
The Court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child. If the Court determines that shared parental responsibility would be detrimental to the child, the Court may order sole parental responsibility. (Emphasis Added).
The decision of the lower Court is reversed and the cause remanded to permit the trial court to make a finding on the question of whether or not shared parental responsibility would be detrimental to the children in this case.
The problem in this case is solely one of words, context, semantics, and philosophy, not judicial error.
Many persons apparently believe that under section 61.13, Florida Statutes, "shared parental responsibility" is an antonym or the antithesis of child custody and that the statute has abolished the concept of custody. Those persons usually also believe (1) that unless the court first explicitly finds that shared parental responsibility would be detrimental to the child (i.e., that one parent is unfit to have custody), the court must provide that the "primary physical residence" (custody) of the child is to be shared (equally ?) between the parents by rotation or some other form of division; 1 (2) that the trial court should not now refer to "custody" and may not place "custody" of the child or children with one parent; (3) that notwithstanding the trial court's opinion as to what is in the best interests of a child, the trial court is bound by any agreement the parents may make relating to the child's physical residence; and (4) that "shared parental responsibility" means that the problem as to where the children are to sleep when the parents cannot agree must be left unaddressed by the court in the original dissolution proceeding.
These are erroneous beliefs founded, in part, on desires of their advocates and, in part, on the fact that often, in times past, the parent given custody, that is, the authority to decide the place of the child's physical residence, was also given, or usurped, exclusive decision-making authority over most of the important aspects of the child's welfare. Notwithstanding, custody means merely the safekeeping of something within the personal care and control of the custodian. While in the context of child custody it necessarily connotes certain rights and duties as to matters requiring immediate, moment-to-moment decisions, it does not include exclusive decision-making authority as to major decisions relating to long range matters concerning which there is ample time to consider available alternatives, such as education, religious training, and non-emergency medical and dental care. In fact, as presently worded, section 61.13, Florida Statutes, which provides for "shared parental responsibility," refers, affirmatively and favorably, seven times to "custody." The statute refers to "child custody dispute" (§ 61.13(3)(j)); to the "custodial home" (§ 61.13(3)(e)); to the person or persons "awarded custody of the child" (§ 61.13(1)), and refers to the court "determining custody" (§ 61.13(2)(b)1.). The statute states clearly that the court "shall have jurisdiction to determine custody" (§ 61.13(2)(a)); "shall determine all matters relating to custody" (§ 61.13(2)(b)1.), and "may make such orders about what security is to be given for the care, custody, and support of the minor children" (§ 61.13(4)). The statutory term "primary physical residence" (§ 61.13(2)(b)2.a.) appears to be the equivalent of the proper meaning of the word custody, while the statutory term "sole parental responsibility" (§ 61.13(2)(b)2.b.) appears to approximate what is the erroneous concept of custody. The reciprocal or converse of the term and concept "primary physical residence" would be "secondary physical residence," which is unmentioned in the statute, but equates with the concept of parental visitation.
From the recorded dialogue between the trial judge and the father's attorney the trial judge appears to have had the correct impression of these words and terms and the father's attorney seems to have been advocating the erroneous concepts arguing that "the concept of custody is unfounded in the [shared parental responsibility] law." With this the trial judge could not agree and, after stating that he would "not enter a shared parental responsibility order" "--of the type you seek to enter," the trial judge stated, The trial judge further stated, "I concur that shared parental responsibility is a beautiful principle and I encourage it [but] I will not enter the order that you seek." The trial judge then entered the final judgment in this case with the husband's attorney saying that the "only objection to it is the one paragraph, numbered five, the first sentence, that provides for a custody award to the wife ...." (emphasis supplied)
In defining "shared parental responsibility" section 61.13(2)(b)2.a., Florida Statutes (1983), explicitly provides in part:
In ordering shared parental responsibility, the court ... may grant to one party the ultimate responsibility over specific aspects of the child's welfare or may divide those aspects between the...
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