Thanks for your help

[floridadad630]

My appeal oral arguement went great.  I can't tell you how much I have appreciated your feedback.  You were the one soul in this world I could bounce ideas off of.  Love you man.

PS, Below is an outline of my stuff.  No need for feedback, just in case you are interested or it can help someone else.


Nature of the appeal involves a custody or visitation dispute and miscalculation of child support.

Facts:
(1) The minor child's name is Ruby Rachelle Matheny  She was born on 12/03/2001 and will be three years old on 12/3/20004.
(2) During the first year of the minor child's life the Mother took 3 months off work(12/2001 to 3/2002) in order to care for the minor child, while Appellant took off 7 months(12/2001;3/2002 to 9/2002 ). Appellant gave notice of FMLA in 5/2002.
(3) Parties were never married, although Appellant did propose with an engagement ring (no answer).
(4) Father arranged for daycare after he returned for work.
(5) The Mother drops the minor child off to daycare and the Father picks up the child from daycare.
(6) Father attended majority of medical appointments.
(7) Parties separated on 12/22/2002 when the minor child was one year old, resulting in Father moving out to a residence with 3.8 miles of the mother's home.
(8) Father filed a Petition to Determine Paternity and related relief on 2/6/2003..
(9) There was a temporary tension between both parties up until the middle of March 2003.
(10) Resumed with daycare arrangements in March 2003. The Mother drops the minor child off to daycare and the Father picks up the child from daycare.
(11) Custody evaluator was agreed upon by both parties on 08/08/2003 at a hearing to determine temporary visitation.
(12) Evaluator concluded child is equally bonded with both parties.
(13) Evaluator stated the child was very comfortable with the Father.
(14) Evaluator mentioned numerous times in both her deposition and testimony at the trail that equal time was preferable and in the best interest of the minor child.
(15) Evaluator stated that it was her belief that both parties could communicate and cooperate once the visitation issue was resolved.
(16) Evaluator recommended:
BIWEEKLY
(a) One overnight during each week.
(b) Alternate weekends from Friday to Monday morning.
(c) Option to pick up minor child after work.
HOLIDAYS
(c)    Equal time for holidays.
SUMMER
(d)  1-4 week summer visitation.
(17) Trial Court's final order granted father the following visitation:
BIWEEKLY
(a) Overnight on Wednesday prior to the Father's weekend
(b) Alternate weekends from Friday to Sunday evening.
(c) Option to pick up minor child after work, to return to Mother at 6:30pm.
HOLIDAYS
(d) Overnights for Christmas and New Year's eve in odd years.
(e) Overnight for Father's day each year.
(f) Overnights on Thanksgiving in even years unless it precedes Father's weekend.
SUMMER
(g) One week in the summer until 2007, which will increase to four weeks.
(18) Trial Court miscalculated child support.
(19) Trial court ordered shared parental responsibility without providing any details or requiring affirmative action for the father.





Argument:
(1) Trial Court's visitation award to Appellant was substantially (40%) less with regards to overnights than that recommended by the custody evaluator with regards to the number of overnights based on biweekly visitation and a reasonable holiday visitation schedule.
(a) Trial Court ordered Appellant to have:
i)  78 overnights (26*3) each year based on biweekly visitation.
ii) 1-3 overnights each year based on Holidays.
iii) Totaling 79-81

(b) Based on the record Appellant could have been awarded the following overnight and still be within the child's best interest:
i) 130 overnights (26*5) each year based on biweekly visitation.
ii) 24 overnights each year based on Holiday schedule.
iii) Totaling 154.

(c) The Trial Court appellant 75 less overnights than recommended by the evaluator on a biweekly basis and a reasonable holiday schedule.

Daily contact depends on my employer allowing me the luxury of leaving work at 4pm.  It is not reasonable to assume I will always be granted this luxury by future employers over the next 15 years.  In the case I am required to work to 5pm or later, my contact would then be limited to alternate Wednesdays  and weekends.  This would result in a weakened relationship between the child and father.

If child support was an issue with regards to visitation, 39% could have been ordered and would have been acceptable.


(2) Abuse of discretion (Canakaris v. Canakaris, 382 So. 2d 1197 (La 1980)), The test to be applied is whether the trial court's ruling is supported by competent evidence (Kuvin v. Kuvin, 442 So. 2d 203 (Fla. 1983).

Judges are given broad discretion so they can make decisions that are fair in a particular case, instead of being locked into a formula that may not suit every situation. Nevertheless, judicial discretion must be exercised fairly and impartially, and a showing to the contrary should result in the ruling being reversed as an abuse of discretion.

(a) The trial court in this case abused its discretion because the record contains no competent evidence to support its decision that a more restrictive visitation furthered the best interest of the child.  To the contrary, the record supports that a lesser restrictive visitation schedule would be within the best interest of the child.

(b) The visitation arrangement requested by petitioner and visitation arrangement recommended by the custody evaluator does not meet the strict definition of rotating custody as defined by the Florida 5th DCA Court in Goins v. Goins 762 So.2d 1049 1051-1052 (Fla.5th DCA2000).  This case limited the definition of rotating custody to an arrangement where each parent has custody of the child 50 percent of the time.

(c) If the visitation scheduled recommended by the evaluator was considered to be rotating custody, then the trial court should have considered factors which overcome the Presumption against Rotating Custody and stating this in his order.

In Bracken v. Bracken (704 So.2d 746 Fla.App. 4 Dist.,1998. Jan. 28, 1998) the Fourth District Court of Appeal stated: We recognize that rotating the primary residence is presumptively not in the best interests of a child. See MacConnell v. Cascante, 668 So.2d 668, 670 (Fla. 4th DCA 1996); Sullivan v. Sullivan, 604 So.2d 878, 879 (Fla. 1st DCA 1992); Wilking v. Reiford, 582 So.2d 717, 719 (Fla. 5th DCA 1991); Bienvenu v. Bienvenu, 380 So.2d 1164, 1165 (Fla. 3d DCA 1980). However, such an arrangement may be ordered where appropriate circumstances exist. Langford v. Ortiz, 654 So.2d 1237, 1238 (Fla. 2d DCA 1995).

In determining whether the circumstances overcome the presumption against rotating the primary residence, the trial court should consider various factors:
(1) age of child, (not met)
(2) whether child is in school, (met)
(3) proximity of parents' residences, (met)
(4) child's preference, (equally bonded--discard)
(5) disruptive effect of rotation on child,  (met)
(6) reasonableness of periods of time spent with each parent, (met--not equal halves)
(7) relation of periods of custody to divisions in child's life, such as school year, and (met)
(8)  parents' attitude toward one another or how their attitude will be perceived by child. (met, communication and cooperation; no evidence of abuse or alienation)

Langford, 654 So.2d at 1238; Gerscovich v. Gerscovich, 406 So.2d 1150, 1151 (Fla. 5th DCA 1981).



(3) Substantive due process.
The fundamental liberty interest of natural parents in the care, custody, and management of their child is protected by the Fourteenth Amendment of the United States Constitution. See Santosky v. Kramer, 455 U.S. 745, 769 (1982). The state can satisfy the compelling state interest standard only when it acts to prevent demonstrable harm to a child. (Beagle, 678 So. 2d at 1276). When an activity is constitutionally protected, as is the fundamental right to parent, a state must chose the least restrictive means possible to achieve its goal.  See Dunn v. Blumstein, 405 U.S. 330, 342-43 (1972) "If there are other reasonable ways to achieve those goals with a lesser burden on a constitutionally activity, a State may no chose the way of greater interference.  If it acts at all, it must choose 'less drastic means.'" Since the right to parent is deemed to be fundamental protected by due process, this court should use the strict scrutiny standard of review. Winfield, 477 So. 2d at 547.

Narrow tailoring is required when fundamental rights are involved. Thus, the state must show adverse impact upon the child before restricting a parent from the family dynamic or physical custody. It is apparent that the parent-child relationship is protected by the equal protection and due process clauses of the Constitution. In 1978, the Supreme Court clearly indicated that the relationships of those parents who from the time of conception of the child, never establish custody and who fail to support or visit their child(ren) are unprotected by the equal protection and due process clauses of the Constitution. Quilloin v. Walcott, 434 U.S. 246, 255 (1978). The state through its family law courts, can impair a parent-child relationship through issuance of a limited visitation order, however, it must make a determination that it has a compelling interest in doing so. Trial courts must, as a matter of constitutional law, fashion orders which will maximize the time children spend with each parent unless the court determines that there are compelling justifications for not maximizing time with each parent.

Clearly the "best interests of the child" standard is to be read in light of the requirement that the parental-child relationship remain intact. Nor should the natural father's federal constitutional rights depend upon the identity of the person attempting to infringe upon them. One's rights should not be less when the biological mother seeks to attack the protected relationship than when a potential adopter seeks to attack that relationship.   The fundamental liberty interest of natural parents is not suspended during parent v. parent custody and visitation disputes. The evidence in the record suggests that a less restrictive visitation schedule could have been implemented which was still within the best interest of the child.  




   This proposition that the parent-child relationship commands constitutional respect in a traditional custody and visitation dispute is admittedly lacking a long life of specific case authority approving it. This lack of specific case authority is not fatal to the proposition's vitality. At least one federal court has found that there is a scarcity of cases in the past which recognize the constitutional sanctity in traditional custody disputes. That court further held that the historical absence of a strong tradition should not result in denial of the constitutional protection for such relationships as they become increasingly prevalent. See Franz v. United States (Franz v United States, 707 F.2d 582 (D.C. Cir 1983).
Excerpt:
The first of the three factors discussed above -- the existence of a
tradition of respect for the institution in question -- provides us little guidance.  It seems undeniable that recognition of the sanctity of the bond between a child and his non-custodial parent is far less firmly HACKded in our cultural heritage than respect for the autonomy of the relations between a child and parent in a nuclear family.  But that discrepancy is readily explainable on the basis of the relative rarity, in United States society in the past, of regularly excised "visitation rights." That situation is rapidly changing, however; the hegemony of the nuclear family is steadily being undermined.  It has been predicted that the proportion of marriages fated to end in divorce will soon reach forty percent. n79 In light of  the
fact that a divorced parent who is not granted custody is routinely awarded visitation rights, n80 the result will be a large and growing number of children whose time and affection are divided between a custodial and a non-custodial parent. n81 In short, the institution of the "broken" family is becoming ever more socially important.  To rely on the absence of a strong tradition of respect for one of the constituent relationships of that institution indetermining its constitutional status seems senseless. Recognition of the need to adjust the meaning of the Constitution to conform to changes in social life n82 requires, in this instance, that we eschew reliance on history.




 I respectfully request that this Court fashion a court order or remand to the trial court instructions which will maximize the available time the minor will spend with each parent

















 

[socrateaser]

...you certainly think like a lawyer. these cases are all sad, and the huge amount of appellate litigation that surfaces routinely in every state is testimony to the fact that the system doesn't work, and that when judges attempt to act as oracles, the respect for law and the rights of the People is diminished.

The only reasonable solution to all of this continuous litigation over custody is for courts to find a presumptive constitutional right of divorced parents to substantially equal physical care and custody of their minor child(ren), absent clear and convincing evidence of parental unfitness.

But, what seems obvious to those directly confronted by the reality of a custody battle, is lost on the rest, who just can't stomach the notion that divorce is the reality of modern society, and children are the bargaining chips used by parents to punish each other for some past moment of lust or love, from which a new life is created.

Pretty ridiculous, when viewed in this light -- but, ridiculous it is, nevertheless.