“ Key ” reVerSAL CreATeS 3-wAy DCA SpLiT
Marital & Family law Section Chair : Rachael L . Rudin – Family First Law Group , PLC
Family law practitioners and judges must be aware of a major reversal in Florida ’ s Second District Court of Appeal case law when a trial court restricts or denies a parent time-sharing .
Before October 2020 , trial courts in Florida ’ s Second District were required by Grigsby v . Grigsby to “ give the parent the key to reconnecting with his or her children ” if time-sharing was denied or restricted . 1 Under Grigsby , a trial court committed reversible error by failing to articulate specific , “ concrete steps ” a parent must take to remove the time-sharing restriction because the absence of instruction “ prevents the parent from knowing what is expected and prevents any successor judge from monitoring the parent ’ s progress .” 2
The legal requirement to provide a parent with the “ key ” to reconnecting with his / her child was repeatedly upheld at the appellate level in Florida ’ s Second , Third , and Fourth Districts . 3 However , Florida ’ s First and Fifth Districts reached the opposite conclusion — ruling section 61.13 ( 3 ), Florida Statutes , establishes the exclusive standard to modify parenting plans ; accordingly , trial courts are “ neither required nor authorized ” to impose additional benchmarks . 4
In October 2020 , the Second District , sitting en banc in Mallick v . Mallick , receded from Grigsby and its progeny and “ steer [ ed ] the law of this district closer to that of the First and Fifth .” 5 The holding in Mallick , receded is straightforward : a trial court ’ s failure to identify steps or benchmarks for a parent to regain time-sharing or eliminate time-sharing restrictions “ is not legal error .” Id . This legal about-face impacts countless families , final judgments , and future proceedings .
By coming “ closer ” to the First and Fifth but not fully adopting those courts ’ rules either , the Second created a three-way DCA split . Under the new Second District rule , a court may exercise discretion and include steps or benchmarks in an order . Significantly , the benchmarks are noncompulsory and do not alter or enhance the requirements of section 61.13 ( 3 ), Florida Statutes . Simply , the “ best interests of children must be assessed under the circumstances at the time of the modification proceeding ; they cannot be determined prospectively based on either the satisfaction of predetermined benchmarks or the failure to achieve them .” Id . Summarily , trial courts in Florida ’ s Second District are no longer required to identify specific
under the new Second District rule , a court may exercise discretion and include steps or benchmarks in an order .
benchmarks ( i . e ., the “ key ”) for a parent to regain time-sharing or eliminate restrictions , but may exercise discretion and provide nonbinding guidance . This differs from the First and Fifth Districts — where trial courts are neither authorized nor required to provide bench - marks to regain time-sharing or alleviate restrictions — and the Third and Fourth Districts — where failure to set forth benchmarks is reversable error . n
1
Grigsby v . Grigsby , 39 So . 3d 453 , 457 ( Fla . 2d DCA 2010 ).
2
Id .
3
See , e . g ., Perez v . Fay , 160 So . 3d 459 ( Fla . 2d DCA 2015 ), Solomon v . Solomon , 251 So . 3d 244 ( Fla . 3d DCA 2018 ), and Witt-Bahls v . Bahls , 193 So . 3d 35 ( Fla . 4th DCA 2016 ).
4
See , e . g ., C . N . v . I . G . C ., 291 So . 3d 204 , 207 ( Fla . 5th DCA 2020 ); Dukes v . Griffin , 230 So . 3d 155 ( Fla . 1st DCA 2017 ). 5
See Mallick v . Mallick , No . 2D19-
1183 , 45 Fla . L . Weekly D 2355c , 2020 WL 6106287 ( Fla . 2d DCA October 16 , 2020 ) ( en banc ).
Author : Andrew D . Reder - Sessums Black Caballero & Ficarrotta , P . A .
4 4 M A Y - J U N E 2 0 2 1 | H C B A L A W Y E R