In a child custody and visitation case, the trial court cannot order a timesharing plan that is materially different than the plan the parties requested. In Krift v. Obenour, the Florida Court of Appeal recently stated: “Because the rotating timesharing plan ordered by the trial court was such a material departure from the plan the parties requested, we reverse and remand for further proceedings on this issue. On appeal, the former wife argues that the trial court erred by ordering a rotating timesharing plan that neither party requested in their pleadings oral any time during trial. “[U]nder Florida Law a trial court may not order an annual, rotating time-sharing where neither parent requested such a plan in the pleadings, nor argued for the plan at the final hearing.” Bainbridge v. Pratt, 68 So. 3d 310,314 (Fla. 1st DCA 2011); see also Flemming v. Flemming, 742 So. 2d 843, 844 (Fla. 1st DCA 1999) (“The trial court did not have authority to rule on matters that were ‘not the subject of appropriate pleadings and notice.’ “).
In Bainbridge, the appellate court reversed an annual rotating timesharing plan ordered by the trial court because it had not been requested by either parent in the pleadings or at the final hearing. 68 So. 3d at 314. The former wife also argues that the amended final judgment providing that the child will reside with the father once she reaches kindergarten age is an improper prospective relocation of the child. The Florida Supreme Court has held that a trial court must not make a best interest determination in petitions for relocation based on a “prospective-based” analysis. Arthur v. Arthur, 54 So. 3d 454, 459 (Fla. 2010). In Arthur, the trial court authorized the mother’s relocation twenty months from the date of the hearing. Id. Specifically, the trial court found that it was in the best interest of the child that the mother relocate to Michigan when the child turned three years old, which would occur twenty months from the date of the judgment. Id. at 455. The Supreme Court concluded that the best interest determination must be made at the time of the final hearing, i.e. “present-based” analysis. 54 So. 3d at 459.”
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