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New Modification of Child Custody Case in 2nd DCA Florida

There was a case that was just released, Mallick v Mallick, 45 Florida Weekly D2355 (Fla. 2nd DCA 2020), wherein the 2nd DCA Court receded from its prior ruling regarding restrictions on time sharing. This conflict was certified. 

“Under Dissolution of Marriage-Child Custody-Modification-Restrictions on Time Sharing-Trial, court did not commit legal error or abuse its discretion by failing to specify steps former wife must take to regain meaningful time-sharing when it modified parties’ parenting plan, which originally awarded former wife a majority of parenting time and granted a majority of time to former husband.” – Discussion of court’s discretion to set forth benchmarks or guidance in time-sharing orders.

“Court recedes from Grigsby v Grigsby and its progeny to the extent that they held the omission of such provisions from parenting orders or judgments to be legal error.” – Conflict certified. 

On appeal, the former wife contended that the trial court erred by failing to delineate what she must do to regain majority time-sharing with the child and by otherwise failing to outline how she may regain meaningful time-sharing.  

The Fifth District Court of Appeals, which encompasses the greater Orlando, Florida area of Orange, Seminole, Volusia, Lake, and Brevard Counties, does not require the court to make such findings. The Fifth DCA holds that Florida Statutes 61.13 neither requires nor authorizes courts to prescribe terms beyond the express provisions of the statute. The First follows the Fifth. 

The Second DCA, in its ruling, steered the law of its district close to that of the First and Fifth but only so far as they hold that failure to specify such steps or benchmarks is not legal error. The Second disagreed with the Fifth regarding any suggestion that those provisions are disallowed because they are not expressly authorized by statute. The Second concludes that whether to include them in a judgment or order is a matter of judicial discretion. 

We will now have to see whether the Florida Court agrees to hear this issue of conflicts amongst district courts, which was certified as an issue of great public importance, and how the Florida Supreme Court rules on this matter if they decide to hear the case. 

If you have more questions regarding a Marital and Family Law matter, you may call Ann Marie Giordano Gilden at Ann Marie Giordano Gilden, P.A. at 407-732-7620 and set an initial consultation. You may also visit my website at AnnMarieGildenLaw.com, and check me out on these other sites: Ann Marie Giordano Gilden on Facebook; Ann Marie (Giordano) Gilden on LinkedIn; and Ann Marie Giordano Gilden on AVVO and Lawyers.com. 

This article is for informational purposes only, and it does not form an attorney client privilege.