Judges Must Safeguard Children: Collaborative Divorce

Collaborative Parenting Plans: Judges Must Safeguard Children. Two kids pillow fighting with feathers flying. Photo by Allen Taylor (Unsplash)

When considering parents’ agreements, judges must safeguard children. A court isn’t bound by parents’ agreements regarding child support, custody, or visitation. Feliciano v. Feliciano, 674 So. 2d 937 (Fla. 4th DCA 1996); see also Yitzhari v. Yitzhari, 906 So. 2d 1250, 1257 n. 4 (Fla. 3d DCA 2005).

A Court’s Responsibility to the Child

Florida family law judges have a heavy responsibility to safeguard children. In carrying out this responsibility, they must ensure purported agreements or arrangements between parents don’t shortchange their child. A court “is not bound by an agreement of parents regarding child support, custody, or visitation.” See Puglisi v. Puglisi, 135 So. 3d 1146 (Fla. 5th DCA 2014) (citations omitted). Rather, the “best interests” of the child supersede “any agreement between the parents and must be independently determined by the trial court.” Id.

Likewise, in Jones v. Jones, 674 So. 2d 770 (Fla. 5th DCA 1996), the court held:

“The best interests of the children are to govern the custody decision, regardless of any stipulation between the parties.” A trial judge, who must safeguard a child’s best interests, may set an agreement aside on child support, custody, and visitation if the agreement is not in the best interest of the child.

“It is undisputed, and should be indisputable, that a trial court’s responsibility to the child cannot be abdicated to any parent, any expert. That heavy responsibility mandates that a court is not bound by any agreement between parents.”
Dorsett v. Dorsett, 902 So. 2d 947, 951 (Fla. 4th DCA 2005) (quoting Lane v. Lane, 599 So. 2d 218, 219 (Fla. 4th DCA 1992))

The court must guard against a parent’s bargaining away a child’s rights for reasons unrelated to the child’s best interests. See Griffith v. Griffith, 860 So. 2d 1069 (Fla. 1st DCA 2003); Cappola v. Cappola, 280 So. 3d 102 (Fla. 4th DCA 2019).

As Judges Safeguard Children, Do the Child’s Best Interests Support Enforcing the Parents’ Agreement?

These principles arose in Antunes v. De Oliveira, 341 So. 3d 420 (Fla. 3d DCA 2022). Mom and dad settled their divorce. They agreed, if either them wanted to take their child out of the United States, that parent would notify the other in writing at least seven days before the trip. Failure to comply would cost the parent $10,000, to be paid to the other parent. Further, they agreed the offending parent would forfeit the right to travel internationally with the minor child until the child became an adult.

Mom took the child to Ireland and didn’t tell dad until the child returned. He moved to enforce the agreement. The appellate court said the trial court should’ve enforced the parents’ agreement on the $10,000.

But, in contrast, the appellate court reaffirmed judges must safeguard children. Accordingly, the court upheld the trial judge’s refusal to enforce the ban on future international travel. Competent substantial evidence the agreed prohibition on wasn’t in the child’s best interests supported this decision.

Collaborative Parenting Plans: Judges Must Safeguard Children. 4 boys playing ball on green grass. Photo by Robert Collins (Unsplash)

Judges Must Safeguard Children, But Have No Free Hand to Disregard Parents’ Wishes

Judges must safeguard children. So parents’ agreements affecting a child’s rights aren’t binding on a family judge. Feliciano v. Feliciano, 674 So. 2d 937 (Fla. 4th DCA 1996). Still, the judge has no free hand to disregard their wishes. Sedell v. Sedell, 100 So. 2d 639 (Fla. 1st DCA 1958).

A court should respect and uphold parents’ agreed parenting plans unless a valid reason related to (1) the best interest of the child or (2) a finding that parents’ agreements were involuntary or the product of fraud justifies not respecting and upholding the parents’ agreements.

See Griffith v. Griffith, 860 So. 2d 1069 (Fla. 1st DCA 2003)(insufficient evidence supported trial judge’s disdaining parents’ mediation agreement resolving alimony, child support, and custody, conducting post-mediation hearings to determine if the agreement was in the children’s best interest, and, concluding the agreement wasn’t in the children’s best interest, reducing doctor-mom’s agreed-on child support obligation); Williams v. Sapp, 255 So. 3d 912 (Fla. 1st DCA 2018)(With no notice or opportunity for mom to be heard, a trial judge improperly modified parents’ mediation agreement for mom to have sole parental responsibility; the trial court must either approve the parents’ agreement as they negotiated it or, if the court is unable or unwilling to do so, must conduct a properly noticed evidentiary hearing).

Collaborating parents may wish to adopt Parenting Plan provisions that cover anticipated future events. See, for example, Perseo v. Donofrio, 379 So. 3d 1183 (Fla. 4th DCA 2024). But the parents must respect that judges must safeguard children whom the provisions would affect. That’s why it makes sense to enlist court review of the children’s best interests when anticipated future events occur.

Agreed Different Burden for Modification – Judges Still Must Safeguard Children

Even when parents have exercised their contract power to agree to a different burden for modification, judges must safeguard children. So it was in Alaska, which has a substantial change in circumstances test similar to Florida’s test.

In JM v. SC, Case No. S-18650, No. 7707 (Alaska July 19, 2024), The highest court in Alaska acknowledged parents had agreed in their settlement agreement to a different burden of proof for modification than the substantial change in circumstances test. But the trial judge decided to apply the substantial change in circumstances test and conduct a “best interest” analysis. The Alaska Supreme Court affirmed the decision, rather than defer to the parents’ agreed-upon burden for modification.

The Parents’ Collaborative Agreement

The parents – two doctors – reached a custody agreement after participating in the Collaborative Divorce process. They agreed:

They would share overnights on a 5-2-2-5 basis.
Their son would live in Alaska through July 1, 2022.
The child would move to New Jersey, where he’d stay until entering 9th grade in 2028.
In 2028, the parents would meet again with a neutral facilitator and child specialist to determine if the child would finish high school in NJ or Alaska.
The parents would present future disputes to a parenting coordinator.

Regarding modification, they further agreed: “Any attempt by either parent to modify the terms of this agreement with respect to [the child’s] relocation to New Jersey should be rejected absent” unanticipated circumstances “detrimental” to the child.

The Alaska Supreme Court discussed how Alaska favors settlement agreements. But the parents couldn’t avoid law that judges have an independent duty to safeguard children in custody modification, including relocation, actions.

The Supreme Court of Alaska agreed custody settlement agreements should be enforced absent extraordinary circumstances…”up to a point.”

The legislature and the courts recognize a preference for respecting custody agreements that are in a child’s best interests, both because they reflect effective cooperation between the parents and because they likely reduce the need for litigation that consumes judicial resources and is financially and emotionally draining for the parties. But the preference applies only to the extent that the agreements reflect — and continue to reflect — a child’s best interests. While courts “may engage in a `less searching’ inquiry” when confronted with a custody agreement, the agreement’s terms do not control if “the child’s best interests justify a deviation.”

And when it comes to the best interests of a child in divorce, “[t]rial courts, not parents, are the ultimate decision makers as to custody and are not bound by private agreements.” “The court must independently determine what arrangement will best serve the child’s interests.” Thus, “when a court recognizes or gives attention to an agreement, it does so not because the parties’ compact binds the court, but for the light it sheds on the motives and dispositions of the parties.” In this case, therefore, to the extent that the superior court independently evaluated the best interests of the child regardless of the parties’ stipulations, it did not err. Amicably-reached custody agreements are to be encouraged, but a court presented with a custody dispute must nonetheless undertake its own full and independent best-interests analysis.

[citations omitted; emphasis added]

When mom and dad entered into the custody agreement, their son showed signs of undiagnosed attention deficit/hyperactivity disorder. Evidence dad presented at a 10-day trial on modification, in opposition to mom’s request to relocate with the child from Alaska to New Jersey, showed the child’s condition did not manifest into the severe emotional disturbances he couldn’t control until several years later, and relocation would not be in the child’s best interests.

Mom unsuccessfully argued dad couldn’t meet the contractual condition for dad to show relocation to New Jersey would be “detrimental,” because mom could satisfactorily address the son’s behavioral issues in New Jersey if the Alaska judge granted relocation. According to the Alaska Supreme Court:

The court was not obliged to follow the parties’ contractual standard if it determined that the child’s best interests required something else, as explained above. But in any event, the contractual and legal standards do not appear to be meaningfully different, at least in the context of the findings in this case.

Questions About Collaborative Parenting Plans?

For questions about opportunities in your Florida Collaborative Divorce to anticipate events reasonably certain to occur and providing for them in your parenting plan, contact Michael P. Sampson of Sampson Collaborative Law.

Sampson Collaborative Law