A recent Fifth District Court of Appeals case addressed whether a court has to adopt the parties custody agreement. In Puglisi v. Puglisi the parties sought to:
Modify the custody and visitation provisions contained in a final judgment of dissolution dated April 11, 2000. The case was settled immediately prior to the final hearing and the parties orally stipulated to the terms of their agreement on the record in the presence of the judge.
The former husband later refused to agree to entry of a final written judgment incorporating these same terms, and filed a motion asking that the oral agreement be set aside and the case proceed to final hearing on grounds that the agreement was not in the best interests of his children.
This request was ultimately denied and final judgment was entered in accordance with the stipulated settlement. Thereafter, the former wife asked for and was awarded section 57.105 fees, on the basis there was no justiciable issue of either law or fact in the former husband's request to set aside the stipulated oral settlement.
This case involved a stipulated settlement of the parties' cross-petitions for modification of custody and visitation. In the usual case, this oral settlement would be considered binding and enforceable in accordance with contract principles, meaning it would be enforceable in the absence of allegations of fraud, deceit, duress, coercion or mutual mistake warranting rescission.
However, this case involves child custody and visitation issues, which are always subject to the overriding concern of the children's best interests. The appellate court stated that "it is well recognized that a court is not bound by an agreement of parents regarding child support, custody, or visitation." The "best interests" of the child takes predominance over any agreement between the parents and must be independently determined by the trial court.
Therefore, a court does not have to ultimately accept your time sharing and custody agreement if it finds that the agreement is not in the minor child's best interest. If you think you have entered into a custody agreement that is not in the best interest of your minor children, contact your expert family law attorney to discuss your rights and responsibilities today.