JENNIFER EDKIN
v.
JAKOB A. EDKIN
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Jennifer Edkin appealed a dissolution of marriage judgment that imposed rotating custody of the parties' minor child between Florida and Oklahoma on a semester basis. The court reversed, finding that the trial court erred in ordering rotating custody when neither party requested it in pleadings or at trial, violating the mother's due process rights.
The trial court abused its discretion by ordering rotating custody without either party requesting it, which violated the mother's due process rights by failing to provide notice and opportunity to be heard on the issue.
[1] A trial court errs by ordering rotating custody when neither party requested such an arrangement in the pleadings or during trial.
[2] A trial court's imposition of rotating custody without notice or an opportunity to be heard violates a party's due process rights.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“it was error to order rotating custody where neither party requested rotating custody in the pleadings or at any time during trial”
Establishes the core holding that trial courts cannot impose custody arrangements not requested by either party
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Join FLexlaw to unlock all legal intelligenceJennifer Edkin and Jakob A. Edkin were divorcing with a six-year-old minor child. The father initiated proceedings requesting only reasonable timeshar…
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HARRIS, J.
Jennifer Edkin appeals the final judgment of dissolution of marriage that provided for rotating custody of the parties’ minor child, who was six years old at the time the judgment was entered. The judgment below required the minor child to attend school in Orlando each fall semester, relocate to her father’s home in Oklahoma each year on December 31st to attend school for the second half of the school year, and relocate back to Florida to start the next school year. Summers and other holidays are equally split. The mother argues that it was error for the trial court to order rotating custody when neither party requested such arrangement in the pleadings or at any time during the trial. We agree and reverse.
The father initiated the proceedings below by filing his petition for dissolution of marriage. In his pleading, the father only requested reasonable timesharing with his child, and he sought permission to relocate to the state of Oklahoma without the minor child.
Even in his pretrial statement, the father continued to request only that he be awarded reasonable timesharing, and he agreed to be responsible for the transportation to and from Oklahoma. Nonetheless, the court ordered a split, rotating custody on the basis that it would help the parents learn to communicate better with one another. We find that it was error to order rotating custody where neither party requested rotating custody in the pleadings or at any time during trial. See Flemming v. Flemming, 742 So. 2d 843, 844 (Fla. 1st DCA 1999) (holding trial court abused its discretion in ordering rotating custody where issue was not raised by pleadings, contravened parties’ agreement, and was not tried by implied consent). The trial court’s actions violated the mother’s due process rights because she was never given notice that the issue of rotating custody would be considered, nor was she given an opportunity to address that issue.
See Moore v. Wilson, 16 So. 3d 222, 224 (Fla. 5th DCA 2009). We reverse and remand for further proceedings consistent with this opinion.
REVERSED and REMANDED.
EVANDER, C.J. and LAMBERT, J., concur. 2
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Citator
Authorities Cited
- Flemming v. Flemming, 742 So. 2d 843 (Fla. 1st DCA 1999)
- Moore v. Wilson, 16 So. 3d 222 (Fla. 5th DCA 2009)