Background

• Parents separated in 2004; child resided with mother in Gainesville and father stayed in Orlando (about 306 miles apart).
• In 2010, father remarried and moved, prompting disputes over parenting time and school arrangements.
• At trial, neither parent pleaded for nor requested an annual rotating parenting plan; the plan was not discussed as a pleaded issue.
• The trial court ordered an equal, annually rotating time-sharing plan, requiring the child to change schools and residences each year, despite ADHD and special education needs.
• The order stated rotating residences and designated each parent as the child’s home residence for tax/records purposes, but contained no discussion of the 61.13(3) factors or evidence supporting the plan’s best interests.
• On appeal, the court held the rotating plan was not supported by competent substantial evidence and violated due process because it was not pleaded or argued at trial.

Issues

Key Cases Cited

• Bienvenu v. Bienvenu, 380 So.2d 1164 (Fla. 3d DCA 1980) (factors supporting rotating custody in appropriate contexts)
• Gerscovich v. Gerscovich, 406 So.2d 1150 (Fla. 5th DCA 1981) (factors favoring rotating time-sharing)
• Parker v. Parker, 553 So.2d 309 (Fla. 1st DCA 1989) (older child may justify rotating custody)
• Alexander v. Alexander, 473 So.2d 236 (Fla. 2d DCA 1985) (considerations for custody arrangements)
• Wilking v. Reiford, 582 So.2d 717 (Fla. 5th DCA 1991) (factors affecting rotating custody)
• Sullivan v. Sullivan, 604 So.2d 878 (Fla. 1st DCA 1992) (factors and considerations in custody decisions)
• Langford v. Ortiz, 654 So.2d 1237 (Fla. 2d DCA 1995) (reversing rotating order where not in child’s best interests)
• Chapman v. Prevatt, 845 So.2d 976 (Fla. 4th DCA 2003) (reversing annual rotating custody where not warranted)
• Ruffridge v. Ruffridge, 687 So.2d 48 (Fla. 2d DCA 1997) (historical context of rotating custody)
• Moore v. Wilson, 16 So.3d 222 (Fla. 5th DCA 2009) (due process when plan not pleaded)
• Flemming v. Flemming, 742 So.2d 843 (Fla. 1st DCA 1999) (due process limits on trial court’s consideration)
• Holly v. Auld, 450 So.2d 217 (Fla. 1984) (unambiguous statutes must be applied as written)
• Wade v. Hirschman, 903 So.2d 928 (Fla. 2005) (two-part substantial change test for custody modifications)
• Cooper v. Gress, 854 So.2d 262 (Fla. 1st DCA 2003) (modification standard for custody)
• Lamelas v. Granados, 730 So.2d 387 (Fla. 2d DCA 1999) (notice and pleadings prerequisites in custody decisions)
• Mudafort v. Lee, 62 So.3d 1196 (Fla. 4th DCA 2011) (factors usefulness in time-sharing analysis)