THE LAST CASE ON THIS MORNING'S D O CKET IS WADE VERSUS HIRSCHMAN. ,,

MA Y IT PLEA SE THE COURT. MY NAME IS TR ACI CA RLIN , AND I AM HERE FOR THE PETITIONER. I AM GO ING TO REFER TO THEM AS THE MOTHER AND FATHER .

RAT HER THAN TO REFER TO THEM AS THE WARRING PARTIES?

YES . BASICALLY WE ARE ASKING THECOURT TO DO THREE THINGS , THE FIRST TO RESOLVE THE CONFLICT BETWEEN THIS CASE BEL OW AND THE COOPER CASE, IN FAVOR OF THE COO PER'S REASONING, WHERE YOU HAVE A ROTATING CUSTODY AGREEMENTTHAT WAS INCORPORATED INTO THE FINAL JU DGMENT AND ONE PARTY OR BOTH PARTIESSEEKING A MODIFICATION , THAT WHAT WE HAVE CALLED THE CHANGE TEST, S H OULD APPLY.

IF WE DO THAT , SHO ULDN'T WE JUST SI MPLY REMAND AFTER THAT, TO THE TRIAL COURT?

WELL , WE WOULD ARGUE, YOUR HONOR, THAT , BECAUSE THE EVIDENCE SHOWS AND THAT YOU ARE AUTHORIZED TO REVIEW ANY ISSUES THAT COME U P IN ADDITION T O THIS CONFLICT , THAT YOU SHOULD, ALSO , DETERMINE THAT THE FATHER FAILED TO MEET THAT CHANGE TEST, BECAUSE HE FA ILED TO DEMONSTRATE THAT THERE WAS A SUBSTANTIAL OR MATERIAL CHANGE POST-JUDGMENT OR THATTHERE WAS ANY

THAT WASN'T THE STANDARD BELOW , WAS IT? I MEAN , THAT WASN'T THE STANDARD THAT THE TRIAL COURT APPL IED AND THAT THE PARTIES UNDERSTOOD THAT T HEY WERE OPER ATING UNDER?

THAT IS WHAT THE PARTIES UNDERSTOOD THAT THEY WERE OPERATING UNDER BUT THE TRIAL COURT N EVER MADE THE FINDING ON THE SE COND PRONGOF THE TEST, WHICH IS THAT THE CHILD WOULD BE PROMOTED BY THE CHANGE OR WOULDSUFFER ANY DETRIMENT IF WE MAINTAINED THE ST ATUS Q U O. WHAT THE COURT DID FIND WAS THAT IT WOULD BE IN THE BEST INTERESTS OF THE CH ILD, JUST BASED ON THE BEST INTERESTS OF THE CHILD , JUST BASED ON 61.93

WE COULD BE HERE ALL DAYON THE MERITS , BUT I THOUGHT THE JUDGE RULE D IT WAS NO LONGER IN THE CHILD'S BEST INTEREST TO HAVE THIS ROTATING CUSTODY AGREEMENT.

YES , BO W THE ANALYSIS OF THE 61 SUBSECTION 93 FACTORS.

BUT GOING BACK TO JUSTICE CANTERO , IT IS PR ETTY DIFFICULT, IN READING THIS JUDGE'S ORDER , TO CO ME TO ACONCLUSION THAT THIS JUDGE DIDN'T THINK THAT THERE WERE SUBSTANTIAL PROBLEMS WITH THE TYPE OF DYSFUNCTION AND ALIENATION ON THE PART OF THE MOTHER THAT MANDATED THAT THERE BE SOME CHANGE.

BUT WHEN WE WE NT TO THE FIFTH DISTRI CT COURT OF APPEAL AND THE FIFTH DISTRICT COURT OF APPEAL WAS LOOKING AT WHETHER THE TRIAL COURT FOUND THAT THE FATHER SATISFIED THE TE ST, THE FIFTH DIST RICT SPECIFICALLY CONCLUDED THAT HE DID NOT SATISFY THE TEST , AND THEREASON THAT THE COURT REACHED THAT CONCLUSION WAS BECAUSE IT DETERMINED THAT HE HAD NOT DEMONSTRATED THAT THE FATHER HAD NOT DEMONSTRATED, AND THEN THERECORD DID NOT SUPPORT , THE DETRIMENT TO THE CHIL D'S STANDARD, AND IN THE FIFTH DISTRICT SPECIFICALLY STATED

BECAUSE THE COURT FOUND THAT UNDERMINED , ALIENATED , THE WI FE, REF USED TO COOPERATE WITH PAR ENTING COORDINATORS AND PROCEEDED ON THIS, SO , A GAIN , GOINGBACK TO THIS ISSUE, IT SEEMSTO ME THAT EVERYTHING THAT THE TRIAL COURT WAS STATINGWAS THAT THIS TYPE OF BEHAVIOR ON THE PART OF AMOTHER, WHO IS , CANNOT BE TOLERATED , AND THAT, WHEN THIS OCCURS , THAT IT IS , OFCOURSE, I S DETRIMENTAL, BUTWHETHER THERE HAS BEEN AN EXPLICIT FINDING , WE ARE NOT HERE TO REREVIEW THE EVIDENCE, BUT IT IS CERTAINLY APPROPRIATE FOR THE TRIAL JUDG E TO MAKE C LEAR WHAT MAY HAVE BEEN IMPLICIT IN WHAT HE WAS STATING .

BUT WAIT A MINUTE. THE FIFTH DISTRICT COURT OF APPEAL HAS SPECIFICALLY SAID IN THE HADLEY CASE, W HICH I S CITED ON PAGE 38 OF OURBRIEF , THAT YOU CAN'T ASS UME THAT CERTAIN CONDUCT IS AFFECTING THE CHILD NEGATIVELY. IN THAT CASE IT WAS A VISITATION DECISION, BUT THECOURT HAD SAID, THE TRIAL COURT IN THAT C ASE HAD CHANGED THE MOTHER'S VISITATION BECAUSE THE CHILDWAS VI SITING WITH THE MOTHER AT HER HOME WHICH HAPPENED TO BE A NUDIST COLONY. THE FATHER ARGUED, THIS IS DETRIMENTAL TO THE CHILD, THAT THE CHILD WOULD GO TO THE NU DIST COL ONY , B ECAUSE A CHILD GETS RIDICULED OR THERE COULD BE RID COOL AND THIS RIDICU LE COULD BE HARMFUL . THE FIFTH DISTRICT IN THAT CASE SAID, NO , YOU CANNOT ASSUME THAT THERE IS DETRIMENT THOUGH THE CHILD. YOU HAVE TO DIT D E ATH REQUIREMENT TO THE CHILD. YOU HAVE TO DETRIMENT. YOU HAVE TO MAKE A SPEC IFIC FINDING OF DETRIMENT.

SO WHERE DOES THE E LEMENT OF DETRIMENT , AS OP POSED TO THE STATUTORY SCHEME OR ALLTHE WAY GOING BACK TO F RASIER, TALKS TO THE WELFARE OF THE CHILD. IS THAT REALLY NOT A DDING A THIRD ELEMENT, AS COEARGUES?

NO, YOUR HONOR , AND PERETSTATED THAT IT DID NOT ADD A THIRD ELEMENT OR IT MIGHT HAVE BEEN YOUNG , BECAUSE THE TWO-PART TEST THAT HAS BEEN ADOPTED BY EVERY DISTRICT COURT OF APPEAL IN THE STATEAS TO MODIFICATION, IS THAT YOU SHOW A SUBSTANTIAL CHANGE POST DISSOLUTION AND YOU SHOW THAT THE CHILD'S BEST INTERESTS WOULD BE PROMOTED BY THE CHANGE.

YOU STARTED OFF THIS PROCEEDING HERE BY SAYING PROMOTES THE WELFARE OF THECHILD OR IS DIT RE NTAL . - - OR IS DETRIMENTAL.

WHAT IT IS THAT COURTS HAVE INTEFERPT INTERPRETED THAT "PROMOTED BY THE CHANGE "COTO, THE COURT WOULD FIND THAT PROM OTED BY THE CHANGE" , THE COURT WOULD FIND THAT NOT MAINTAINING THE STATUS QUO WOULD B E DETRIMENTAL TO THE CHIL D. THAT IS FOUND IN YOUNG , P EREZ , ANY OTHER NUMBER OF CASES THAT WE HAVE C ITED IN OUR BRIEF , INCLUDING THE HADLEY CASE , A FIFTH DISTRICT CASE , AND THE SCHWINEBERG CASE, ALL SAYTHAT THE CHILD'S BEST INTEREST WOULD BE PROMOTED B Y THE MODIFICATION. THERE HAS TO BE SOME DIT REPRESENT SOME DETRIMENT ELEMENT TO . THAT WHAT WE ARE FOCUSING ON IS THE BEST INTERESTS OF THE CHI LD NOT THE PARE NT.

I UNDERSTAND THAT. WHAT I THINK JUSTICE BELL IS ASKING, AND I DON'T K NOW IF WE ARE GOING BE YOND THESCOPE OF THE CONFLICT. YOU HAVE YOUR FIRST POINT BEING THAT A, AND LE T' S GETBACK HERE THAT THE VOTE EIGHTING THE ROTATING CUSTODY AGRE EMENT THAT WASSIGNED, DOESN'T HAVE A LESSER VALUE, IN TERMS OF THE MODI FICATION STANDARD, THAN OTHER TYPES O F AGREEMENTS, CORRECT? AND THAT IS REALLY THE ONLY CONFLICT ISSUE WE HAVE.

RI GHT. IS WH ICH STANDARD WOULD APPLY WITH VOTE RATING W ITH RO TATING CUSTODY.

BEYOND THAT, IF WE DECIDE THAT IN YOUR FAVOR, YOU WANT TO GO BEYO ND THAT AND SAY THAT WE SHOULD BE ABLE T O LOOK AT THIS ALL AND DECIDE THAT THERE WAS NO, YOU KNOW , THAT THEY DIDN'T MEET E ITHER OF THE CITE YEAR YEAH , AND I ANY O F THE CRITERIA , AND I DON'T UNDERS TAND WH Y IT WOULDN'T BE MORE APPROPRIATEFOR US TO REMAND IT, AS JUSTICE CAN TERO SUGGESTED , BACK TO THE TRIAL COUR T, TO SEE IF , UNDER THE STATE OF THE RECORD AT THAT TIME , WHETHER THOSE FINDINGS CAN BE MA DE.

WELL , THAT WOULD BE ONEAPPROACH. THE OTHER APPROACH WOULD BE TO SIMPLY REMAND IT TO THE FIFTH DISTRICT, BECAUSE THE FIFTH DISTRICT IN ITS OPINION, SPECIFICALLY STATED THAT, IF THE CHANGE TEST APPLIED , AS WE HAVE ARTICULATED IT, THE FATHER DID NOT MEET THAT TEST , AND I F YOU LOOK AT PAGE 95 4 OF THE OP INION AS TO THAT DETRIMENT PO RTION , THE FIFTH DISTRICT STATED, QUOTE , THERECORD INDICATES THAT THE CHILD WAS NOT NEGATIVELY IMPACTED BY WA DES , IN THAT CASE THE MOTH ER'S ACTIONS.

MS. CARLIN , SEE , THEPROBLEM I HAVE WITH THAT , IS IF WE ARE GOING TO GO AHEAD AND SAY THE FIFTH DISTRICT IS IN NO BETTER POSITION TO LOOK AT THIS RECORD AND DECIDE WHETHER THE MOTHER'S CONDUCT WAS LIKELY TO CAUSE HARM TO THE CHILD. AND SO I DON'T UNDERSTAND IF WE ARE GOING TO BELIEVING I T AND SAYING LET THE FIFTH DISTRICT LOOK AT THE RECORD AND D RAW CONCLUSIONS OF LAWABOUT IT. WE CAN DO THAT , JUST AS WELL , AND GOING TO THAT , I THINK THAT THE DIFF ICULTY I HAVE , AND IT MA Y BE THE FRUSTRATION OF MANY APP ELLATE COURTS AS I READ THESE DECISION LIKE N IFE ANDOTHERS, I S LIKE NKNIPE AND OTHERS , IS THAT W E CAN'TWAIT UN TIL A CHILD STARTS EXHIBITING NIGHTMARES OR OTHER TY PES OF PRO BLEMS . WE CAN LOOK A T THE TYPE OF BEHAVIOR THAT IS BEING ENGAGED IN BY A PARENT , THAT IS SO ANTI-THREATCAL T O GOOD PAR ENTING AND PROMOTING S OUND POST DIVORCE AGREEMENTS, WHICH IS WHAT THEY WERE SUPPOSED TO TRY TO DO , TO SAY THAT THIS CAN BE IN THE BEST INTERESTS OF THE CHILD BECAUSE THE CHILD HAS NOT YET, YOU KNOW , IS RESILIENT , WOULD MEAN THAT WE WOULD HAVE TO WAIT FOR A FEW YEARS TO SEE IF THE CHILD REALLY STARTED DEVELOPING SIGNIFICANTPROBLEMS, BE FORE THE TRIALCOURT WOULD HAVE THE ABILITYTO CHANGE THE ARRANGEMENT?

WELL , YES. I MEAN , THE PROBLEM IS THAT THE FOCUS NE EDS TO BE ON WHAT IS IN THE BEST INTEREST OF THE CHILD. IN PEREZ , THE THIRD DISTRICT HAS SAID, LOOK, WE HAVE GOTTO HAVE THIS DETRIMENTELEMENT , BECAUSE IF WE DON'T HAVE THE DETRIMENT ELEMENT , YOU ARE GOING TO HAVE CONSTANT FI GHTS BETWEEN PARTIES THAT ARE OTHERWISE FIT PARENTS , ABOUT WHERE THE CHILD SHOULD RESIDE.IN THIS CASE, THE MOTHER'S ALLEGED , YOU KNOW , FAILURE TO COOPERATE WITH THE PARENTING COORDINATOR AND D O WHATEVER, YES, IS A PROBLEM A MONG THE PARE NTS , AND MAYBETHE WAY YOU RESOLVE THAT I S YOU EFFECT SH ARED PARENTAL RESPONSIBILITY, WHICH IS WHAT HAPPENED IN THE KN IPE CASE. THEY DIVI DED SHARED PARENTAL RESPONSIBILITY AND SAID PARENT A, MOM GETS T O DECIDE M EDICAL DENTAL STUFF AND PARENT B, THE FATHER GETS TO DEC IDE EXTRACURRICULAR ACTIVITIES, SO WE STOP HAVING THIS CONTACT BETWEEN THE PARENTS , BUT IN THIS CASE THE KID WAS DOING FINE WITH THE ROTATING CUS TODY ARRANGEMENT.

CAN WE REALLY SAY THAT THE KI D WAS DOING FINE WITH THE ROTATING CUSTODY? IT SEEMS TO ME THAT, IN THE T RIAL COURT'S OR DER , HE TALKS ABOUT THE CHILD NOT TURNING IN HOMEWORK ASSIGNMENTS. I MEAN, THERE ARE ANY NU MBER OF THIN GS I N THE TRIAL COURT'S ORDER THAT CHILD WAS NOT REALLY PROSPERING UNUNDER THIS ROTATING CUSTODY.

LET ME ADDRESS THE SCHOOL ISSUE. THE SCHOOL ISSUE WAS THAT THE MOTHER DID NOT COOPERATE WITH THE S E COND G RADE TEACHER. THE SECOND GR ADE TE ACHER TESTIFIED AT THE TIME OF THE MODIFICATION HEARING, THE CHILD WAS GOING INTO THE FOURTH GRADE. NO TEACHER F ROM HER THIRD GRADE YEAR E VEN TESTIFIED AT THE TRIAL. THE SECOND GRADE TEACHERSAID, YEAH, I HAD PROBLEMS WITH THE MOM D URING THESCHOOL YEAR BUT THEY HAD IMPROVED BY THE END OF THEYEAR. IN THE KELLY AND THE GRUMNEY CASE , BOTH SAID WHEN YOUHAVE GOT A PROBLEM AND ITHAS BEEN CURED BY THE T I MEOF THE HEARING , WE DON'T PENALIZE THE CHILD BY THE FATHER'S OR MOTHER'S CON DUCT , BY MAKING THE CHILD HAVE OTHER PLACEMENT.

IS THIS TYP ICAL TO THE SITUATION WHERE THE MOTHER WOULDN'T LET THE CHILD DO CERTAIN THINGS BECAUSE THE MOTHER WA NTED THE CHILD TO BE CL OSE T O HER AND, I MEAN , THERE ARE ANY NUMBER OF THING THAT IS ARE V ER Y TROUBLING IN THIS ORDER ABOUT THE MOTHER'S CONDUCT.

RIGHT, B UT THE PROBLEM WITH THOSE FINDINGS WERE THAT THEY WERE PREJUDGMENT CONDUCT. THAT MA KES IT RES JUDICATA. THERE WAS AN ORIGINAL JUDGMENT THAT DETERMINED , BASED ON FLORIDA STATUTE 61.121, THAT ROTATING CUSTODY WAS IN THE CHILD'S BEST INTEREST.

LET ME ASK YOU ON THAT LINE, YOU MADE THE STATEMENT THAT THE FIFTH DISTRICT HELD THAT THERE WAS NOT AN INSUFFICIENT SHOWING AS TO ACHANGE OF CIRCUMSTANCES. WHERE IN THIS OP INION DOES IT SAY TH AT?

I ACTUALLY , WHAT I WAS TALKING ABOUT EARLIER , WAS THAT THE Y MADE A STATEMENTTHAT THERE WAS AN INSUFFICIENT SHOWING OF DETRIMENT TO THE CHILD.

BUT THEY DIDN'T MAKE , BUTTHERE IS NOTHING IN THIS OPINION THAT I HAVE FOUND, THAT SAYS THAT THEY MADE THE STATEMENT THAT THE FIFTH DISTRICT MADE THE ST ATEMENT , THAT THERE WAS AN INSUFFICIENT SHOWING OF A CHANGE OF CIRCUMSTANCES . IT ME RELY SAID THAT WE DO NOT NEED TO ADDRESS THE ISSUE OF WHETHER HIRSCHMAN SUFFICIENTLY ESTABLISHES A SUBSTANTIAL

JUSTICE WE LLS , AT PAGE 954 OF THE FIFTH DISTRICT'S OPINION, IT SAYS THE RECORD , AND IT IS REFERRING TO THE SUBSTANTIAL OR MATERIAL CHANGE PORTION OF THE TEST , THAT THE RECORD BEARS OUT HER AR GUMENTS , AND IN THAT CASE THEY WERE REFERRING TO THE MOTHER'S ARGUMENT THAT THE FATHER FAILED TO SHOW A POST JUDGMENT SUBSTANTIAL OR MATERIAL CHANGE

WHAT LANGUAGE ARE YOUREFERRING TO HERE?

PAGE 9534 OF THE OPINION.

WHERE ON PAGE 9 54 OF THE OPINION.

WHERE ON THAT PAGE?

QHIL I AM LOOKING FORTHAT, YOUR HONOR WHILE I AM LOOKING FOR THAT, YOUR HONOR, WH ILE I AM DIGGING THROUGH MY MANY CASES, THE OTHER ISSUE FOR US IS THAT YOU HAVE TO MEET BOTH ASPECTS OF THE TEST, SO EVEN IF THE COURT WERE TO CONCLUDE THAT THE FATHER DEMONSTRATED SOME SORT OF SUBSTANTIAL OR MATERIAL CHANGE , B ECAUSE THEY DIDN'T DEMONSTRATE THAT THERE WAS A DETRIMENT TO THE CHILD , THAT

OKAY.I SE E THE SENTENCE THAT YOUARE REFE RRING TO. THE RECORD BEARS OUT HER ARGUMENT, REF ERRING TO THE FACT THAT SH E WAS ARGUING THAT SHE HAD ALL OF THESE PROBLEMS, PR IOR T O THE ENTRY BY THE TRIAL JUDGE , OF THIS J OINT CUSTODY ORDER . CORRECT?

THAT'S CORRECT. RIGHT.

RIGHT. BUT THEN THE COURT DOESN'T SAY THAT THE POSITION THAT , SINCE THAT TIME , THE PROBLEMS THAT WERE IDENTIFIED HAD BORNE OUT BY THE FACT THAT SHE WASN'T COMPLYING WITH THEORDER THAT SHE WASN'T COO PERATING , THAT SHE WASN'T , THAT SHE WASN'T DEMONSTRATING THAT SHE COULD FULFILL THIS J OINT PARENTING. ISN'T THAT WHAT THE FIFTH DISTRICT IS SAYING? THIS RECORD DEMONSTRATE?

I THOUGHT WHAT THE FIFTHDISTRICT WAS SAYING WAS , IF THE CHANGE TEST APPLIED , IFYOU HAD TO MEET THAT TWO-PART TEST, THE FATHER DIDN'T MEET THE TEST, BUT WE DON'T THINK THAT IS THE TEST THAT APPL IES , BECAUSE WHEREYOU HAVE AN AGREED -TO R OTATING CUSTODY ARRANGEMENT , WE GET TO GO BACK AND DO A COMPLETE DO OVER , B ASED ON THE BEST INTEREST ANALYSIS UNDER 61.13 SUBSECTION 3. IT IS OUR CONTENTION HOWEVERTHAT, THE FATHER DIDN'T MEET THE TEST ON SHOWING A SUBSTANTIAL POST JUDGMENT CHANGE, BECAUSE THE FOCUS IS ON CHANGES POST DISSOLUTION.

IS IT YOUR POSITION THAT YOU CANNOT CONSIDER THE A CTIONS B E FORE JUDGMENT IN MAKING THAT DECISION?

ABSOLUTELY , YO UR HONOR , AND THAT

SO IF YOU HAVE A SITUATION WHERE YOU HAVE W ARRING PAR TIES AND THEY SAY, LOOK, THIS ISN'T IN THE BEST INTER ESTS OF OUR KIDS. L ET'S TRY THIS. LET'S TRY ROW RATING ROTATING CUSTODY AND SEE IF IT WORKS IN THING ITING ATMOSPHERE, YOU WOULD SAY THAT RES JUDI CATA IS SO STRONG THAT WE HAVE TO PUT BLINDERS ON AND NOT CONSIDER THE IMPACT BEFOREHAND IN THE TOTALITY OF THE PICTURE. ISN'T THAT RATHER ARTIFICIAL , W HEN YOU ARE GOING BACK TOTHE COURT EVERY S IX MONTHS OR A YEAR , BECAUSE THERE IS SO M UCH DISCORRUPTION DISRUPTION IN A CHILD'S L IFE?

NO. YOUR HONOR, THAT G O ES TO THE CHANGE PORTION OF THE TEST. THE CHANGE PORTION OF THE TEST, IS THE WA RRING PARTIES DETRIMENTAL TO THE CHIL D? THERE WAS EVIDENCE IN THERECORD THAT THIS CHILD WAS HAPPY GO LUCKY, DOING WELL IN SCHOOL, NOT NEEDING THERAPY , WAS NOT COMPLAININGABOUT PROBLEMS.

IS IT YOUR POSITION THAT THE TRIAL COURT CANNOT CONSIDER WHAT HAPP ENED BEFORE THE JUDGMENT AND HASTO IN ESSENCE, PUT BLINDERS ON, IN MA KING THE DETERMINATION WHETHER THIS CONDUCT THAT HAS OCCURRED , BEEN OC CURRING FI LING OF THE PETITION IN SIX MONTHS , I CAN LOOK AT THE SIX MONTHS BUT I CAN'T LOOK AT THE TWO Y EARS THAT THEY ARE BATTLING BEFORE, IN TWO AND-A-HALF YEARS OF WARRING AND CON FLICT AND INTERRUPTION OF VISITATION?

YES, AND THAT IS WHAT THE FIFTH DISTRICT IN SWINEBERG HAS HE LD AND IN COOPER HAS TOLD HELD .

THIS COURT HAS NE VER HELD THAT.

THIS COURT, TO MY KNOWLEDGE, HAS NOT EVER HELD THAT, OTHER THAN IN THE JIMINEZ CASE THAT SAYS , WHETHER YOU GET A JUDGMENT BY CONSENT OR CONT EST, IT ISTHE JUDGMENT OF THE COURT , A ND AS A RESULT, ANYTHING BEFORE THAT , IS HA NDLED BY RES JUDICATA.

BUT THE DIFFERENCE , I GUESS, IS THAT , WHAT THIS COURT , WHAT THE TRIAL COURT , THE DIFFER ENCE WAS TO APPROVE A ROTATING CUSTODY AGREEMENT WHERE THERE WOULD BE A PARENTING COORDINATOR , AND WHEN THE TRIAL COURT THEN FINDS THAT THE V ERY BASIS FOR THE AGRE EMENT THAT WAS APPROVED , DOESN'T WORK, IT CAN'T WORK , IT CAN'T WORK BECAUSE OF THE CONDUCT OF THE MOTHER , I AM HAVING DIFFICULTY UNDERSTANDING HOW THAT IS NOT A CHANGE OF CIRCUMSTANCES.THAT IS THAT THE AGREEMENT THAT WAS NOW ENTERED INTO , IS INCA PABLE OF BEING , O F BEING IN OPERATION. THAT, AND THAT THE AGREEMENT IS NOT, WHAT THE JUDGE FOUND, IS NOT IN THIS CHILD'S BEST INTEREST. THAT IS WHAT THE JUDGEFOUND.

OKAY.WELL, THEN, I THINK THAT , EVEN IF I WERE TO CONCEDETHAT THAT A CHANGE IN CIRCUMSTANCES , WH ICH I DON'T REALLY CONC EDE BUT FOR THESAKE OF ARGU MENT I WILL CONCEDE.YES , THE TRIAL JUDGE IN THIS CASE FOUND THAT IT WAS IN THE BEST INTERESTS OF THE CHILD TO HAVE THE FATHER BE THE PRIM ARY RESIDENTIALPARENT. H E DID NOT FIND AND THE RECORD DOES NOT SUPPORT A FINDING THAT THE CHILD'S BEST INTERESTS WOULD BE PROMOTED BY THAT CHANGE OR THAT THE CHILD WAS SU FFERING DETRIMENT AS A RESULT OF THE ROTATING CUSTODY ARRANGEMENT.

IS THAT BECAUSE THE COURT RELIED ON 61.13-4-C-5 ANDRELYING ON THAT SECTION SPECIFICALLY WHICH SAYS THAT IF THERE IS A INTERR UPTION IN VISI TATION U PON THEREQUEST OF THE NONCUSTODIAL PARENT, IF THE A WARD IS IN THE BEST INTERESTS OF THECHILD.IT DOESN'T PROMOTE THE BEST INTEREST OR DETRIMENT

THAT'S RIGHT. I THINK HE DID RELY ON THAT TO SOME DEGREE BUT I THINK WE PERSUADED HIM IN THE FIFTH DISTRICT THAT THAT STATUTE DOESN'T APPLY, WHEREYOU HAVE A ONE-TIME VIOLATION OF THE V I SITATION RIGHTS AND THAT WAS HANDLEDTHROUGH A CONSENT TE MPT TO A CONTEMPT PROCEEDING.

CHIEF JUSTICE: I WANT TO REMIND YOU OF HOW MUCH TIM E YOU HAVE LEFT.

I REALIZE I A M RUNNINGINTO MY REBUTTAL TIME, AND I G UESS ILL SAVE THE REMAINDER O F MY AND I G UESS I WILL SAVE THE REMAINDER O F MY TIME FOR REBUTTAL. THANK YOU.

GOOD MORNING , I THINK , STILL , YOUR HONORS , AND MAYIT PLEASE THE COURT. I AM LINDA BRYAN , AND I REPRESENT THE FATHER , THE RESPONDENT IN THIS MODIFICATION PROC EEDING . WE HAVE ADDRESSED THE ISSUES IN OUR BRIEFS, BUT I WAN T TO BEGIN WITH THE STA NDARD ISSUE, WHIC H I THINK IS WHYWE ARE HERE BEFORE THIS COURT. AND IT OUR POSITION THAT THE STA NDARD ANNOUN CED BY THE FIFTH DISTRICT , WHICH VERY SUCCINCTLY STATED IS , I F YOU HAVE A ROTATING CUSTODY PLAN AND N O PRIMARY RESI DENTIAL PARENT, AND THERE I S COMPETENT SUBSTANTIAL PROOFTHAT THAT PLAN HAS FA ILED, THEN , THE TRIAL COURT SHOULD BE AB LE TO RE TURN TO THE 61.13 SUB3-3 FACTORS.

SO WHY , IN A ROTATING CUSTODY , SHOULD WE HAVE A DIF FERENT STANDARD THAN FROM ANY OTHER KIND OF CUSTODY ARRANGEMENT ? BECAUSE A TRIAL JUDGE COULD EASILY FIND , IN ANY KIND OF CUSTODY AR RANGEMENT , THAT IT IS JUST NOT WORKING OUT , AND SO UNDER T H OSE CIRCUMSTANCES , SHOULD YOU GO BA CK, INSTEAD OF U SING THE STANDARD FOR MODIFICATIONS , GO BACK TO THE ORIG INAL STANDARD UNDER 61.13 PAREN 3?

I THINK IT IS A PARTICULARLY GOOD FIT IN THIS CIRCUMSTAN CE. I THINK IT IS A GOOD FIT ON THE POLICY OF THE STATE, N UMBER ONE .

THE POLICY

THE POLICY OF THE STATE AS ANN OUNCED , OF COURSE , IN THE VARIOUS CASES , ALL OF THE CASES , IS THE BEST INTEREST OF THE CHILD, BUT SPECIFICALLY IN SECTION 61.13 SUB -2 SUB- B, IS THAT THE TRIAL COURT SHALL PRESCRIBE CUSTODY IN THE BEST INTERESTS OF THE CHILDAND IT IS THE POLI CY OF THE STATE TO ALL OW PARENTS E QUAL ACCESS TO THE CHILDREN.NOW , ROTATING CUSTODY IS , I T FITS THAT BILL .

BUT THE TWO-PRONG STANDARD THAT IS BEING APPROVED APPL IED TH ROUGH ALL APPLIED THROUGH ALL OF THE D CA'S CAME OUT OF PHRASE YES , D O YOU AGREE?

Y ES.

AND F R ASIER WAS A ROTATING CUSTODY CASE.

RIGHT.

SO WE WOULD HAVE TO RECEDE FR OM FRASIER.

YES . YES. THE COURT WOULD HAVE TO RECEDE FROM THE POSITION THAT IT APPLIES , THAT ALL ROTATING CUSTODY DECISIONS MUST HAVE THE SUBS TANTIAL CHANGE, AS I CA LL IT , TEST.

WHY WOULD THIS BE , YOUKNOW , MOST , WE HAVE IN THE STATE A PRESUMPT ION IN FA VOR OF SHA RED PARENTAL RESPONSIBILITY, AND WHAT STRIKES ME ABOUT THIS CASE , IS THAT THE PROBLEM , REALLY , WASN'T WITH THE SHAFERD , THE ROTATING WITH THE SHARED , THE ROTATING CUSTODY , BUT WAS WITH THE INABILITY OF THESE PARENTS T O COMMUNICATE AND COOP ERATE ABOUT THE DECISIONS IN THIS CHILD'S L IFE , YET THE TRIAL JUDGE CHANGES PRIMARY RESIDENTIAL CUSTODY TO THE FATHER , BUT KEEPS SHARED PARENTAL RESPONSIBILITY, THERE BY STILL KEEP ING THE PO TENTIAL FOR THIS LE VEL OF AC MONEYTO CONT INUE , SO OF ACRY MONEY , TO CONTINUE, SO I AM HAVING A HARD TIME UNDERSTANDING WHY WOUL DN'T TAKE, OF ALL OF THE TYPES OF AGREEMENTS THAT COULD BE ENTERED , A ROTATING CUSTODY A GREEMENT, AND PUT THOSE ON A LE SSER BA SIS THAN ANY OTHER KIND OF AGREEMENT THAT IS MEDIATED AND IS APPROVED B Y THE COURT , AND I AM NOT SURE YOU HAVE GIVEN A REASON , YET , THAT WOULD PERSUADE ME THAT THERE SHOULD BE A DIFFERENT STANDARD.NOW , WHAT THE STANDARD SHOULD BE , MAY BE OPEN FOR DEBATE, BUT THAT

I THINK THE REASON IS THIS, AND I WILL A D DRESS IT FROM A L E GAL PERSPECTIVE, AND I WILL USE THE GIBBS CASE OUT OF THE SECOND DISTRICT. THE GI BBS CASE HAS BEEN CITED IN B OTH BRIEFS , AND RECITES AN EXCELLENT HISTORYOF HOW THE MATERIAL CHANGE STANDARD CAME ABOUT. AND IT TAL KS ABOUT THE MATERIAL CHANGE STANDARD ARISING OUT OF THE RES JUDICATA CONC EPT AND THE PRESUMPTION IN FAVOR OF THE CUSTODIAL PARENT , AND THE RES JUDICATA CONCEPT , IN THAT THESE ISSUES HAVE BEEN LITIGATED , YOU KNOW, THERESHOULD BE FINALITY TO JUDGMENT. THEREFORE RATHER THAN IMPUGN THIS ABILITY OF THE JUDGMENT , WE SHOULD APPLY THIS TEST . NOW , WHEN YOU MOVE THAT SAME TEST TO A ROTATING CUSTODY PLAN , IN WHICH THE PRIMARY RESIDENTIAL PARENT HAS NOT BEEN ADJUDICATED , WHEN THERE IS NO BRUMTION IN FAVOR O F PRESUMPTION IN F AVOR OF A CUSTODIAL PARENT, THEN THE LEGAL UNDER PINING FOR THE TEST FAILS , AND AND ROTATING CUSTODY , AS I THINK EVER YONE W OULD AD MIT, AND THIS IS NOT A GOOD OR BAD COMMENT ON IT , IS A DE LICATE BALANCE, A DELICATE SITU ATION.

MAYBE YOU HAVEN'T RESPONDED, THEN , TO THE SECOND PART OF THE QUESTION,WHICH IS ASSUMING IT IS A DEL ICATE BALANCE , THE THING THAT C REATED THE IMBALANCE, WAS NOT PROBLE MS WITH HOW TO DO THE CHANGE IN THE RESIDENCE BUT WAS ABOUT THE SPORTS, WAS ABOUT WHAT WASGOING ON IN SCHOOL , HOW THE MOTHER TOOK THE KID OUT OF , CHILD OUT OF , WANTED TO TRY TO TAKE THE CHILD OUT OF THE S CHOOL AND ALL OF THOSE , ANDI DON'T SEE ANY OF THAT HAVING EVEN THE SLIGHTESTBIT TO DO. I DIDN 'T SEE ONE PART OF THEEVIDENCE BEING THAT SOMEHOW HAVING THIS CHILD GO BETWEEN TWO HOMES WAS , REALLY , THE THING THAT WAS CREATING THE PROBLEM. THAT PART SEEMED TO BE WORKING , OTHER THAN THOSE TWO DA YS WHERE SHE DIDN'T EXCHANGE BR YAN PRETTY WELL.

I BELI EVE , YOUR HONOR , THAT E ACH ROTATING CUSTODY ARRANGEMENT , AS THIS C OURT , THE FIFTH DISTRICT CALLED IT, HAS TO STAND ON ITS OWN , AND IN THIS PARTIC ULAR IN STANCE , THE FAIL URE OF THE ARRANGEMENT, OF COURSE , IS I F YOU LOOK AT IT FROM ACHANGE PERSPECTIVE, THE CHANGE, BUT HERE I BELIEVEIS THE KEY AND THE ANSWER T O YOUR QUESTION, IS THAT , IN THIS INSTANCE, IN THE CONSENT FINAL JUDGMENT , THIS TRIAL COURT , YOU KNOW , THE INITIAL ROTATING CUSTODY JUDGMENT TO WHICH THEPARTIES HAD AGREED , THE TRIAL COURT SPECIFICALLY FOUND THAT THE ROTATING CUSTODY WITHOUT THE PRIMARY RESIDENTIAL PARENT , WAS IN THE BEST INTERESTS OF THIS CHILD, TO PRO MOTE FLEXIBILITY AND COOPERATION . AND AL MOST FROM THE GET-GO , IF YOU WILL PARDON THAT LEGAL TERM , THIS PARTICULAR MOTHER DID EVERYTHING SHE COULD TO VI OLATE THE PLAN.

ALL RIGHT. SO LET'S JUST TAKE IT AND LET'S ASSUME THE ORIGINAL AGREED -TO THING SA ID THAT THE MOTHER, THE MOTHER WOULD HAVE PRIMARY CUSTODY, AND THAT AS TO EVERYT HING E LSE A BOUT DECISION-MAKING , THERE WOULD BE A PARENTING COORDINATOR, AND FROM THE GET-GO, EVERY SI NGLE THING OCCURRED THAT HAPPENED IN THIS CASE. W HY SHOULD THERE BE TWO DIFFERENT STANDARDS THAT APPLY , WHEN AN AGREEMENT THAT HAS BEEN MEDIATED DOESN'T WORK OUT? WHETHER IT B E BECAUSE THERE WAS A SHARED PARENTAL RESPONSIBILITY THAT IS NOT WORKING OUT, OR WHETHER IT WAS A ROTATING CUSTODY , ANDI AM STILL NOT , YOU KNOW , ITSEEMS TO ME, AG AIN , THE MORE CRITICAL PART HERE FOR THE FATHER , WAS THAT THE MOTHER WAS INTERFERING IN DECISION-MAKING, NOT I N THE CUSTODY ISSUE .

I CANNOT SAY TO T HIS COURT THAT THE MOTHER WAS NOT INTERF ERING IN DECISION-MAKING.THIS IS NOT A PERFECTSITUATION. THIS WILL NEVER BE A PERF ECT SITUATION.BUT THIS TRIAL COURT , IN ITS JUDGMENT

LET ME JUST AGAIN ASK YOU , W AS THERE ANY DISPUTE THAT WAS SHOW N TO THE COURT , TO ARISE OUT OF THE CUSTODY, THE FACT THAT THE CHILD WAS GOING BETWEEN TWO HOM ES? WAS THERE SOMETHING THAT WAS THE SUBJECT OF THE PARENTING COORDINATOR 'S DISPUTES?

THIS CUSTODY PLAN WASMORE THAN JUST BACK AND FORTH BETW EEN THE HOMES. THIS JUDGE , REMEMBER FACTUALLY , AND I KNOW YOU ARE WELL V ERSED IN THE FACTS , BUT REMEMBER FA CTUALLY THIS FATHER HAD HAD TEMPORARY CUSTODY OF THIS CHILD SINCE THE SEPARATION, BECAUSE THE MOTHER HAD ASKED THEM BOTH TO LE AVE, AND SO WHAT HE WASFACED WITH AT THIS TIME , WASHOW DO I ALLOW THIS MOTHER THAT WE RECOGNIZE MAY HAVE SOME EMOT IONAL ISSUES , OR CONTROL ISSUES, HOW DO I ALLOW HER E QUAL AC CESS TO A SEVEN-YEAR-OLD? THAT IS WHAT I WANT TO D O. SO THEY IM PLEMENT A ROTATING CUSTODY ARRANGEMENT, AND THAT WAS MY MINDFUL , TH ATWAS ON THIS TRIAL COURT'SMIND. THE ARRANGEMENT INVOLVED THE FIVE -NINE SPLIT OF TIME, FIVE DAYS , NINE DAYS. IT INVOLVED THE PARENTING COORDINATOR, AS THE ARE A BIT OR OF IF AS THE ARBITER , IF YOU WILL , OF THE DISPUTES , AND A PLAN ON WHICH THE PARTIES AGREED , AND IT IS OUR P O SITION THAT YOU CANNOT CONSIDER THIS ROTATING CUSTODY ARRA NGEMENT WITHOUT CONSIDERING THE P LAN. IT IS JUST NOT A QUESTION , SO THEN YOU HAVE TO LOOK AT,WELL, HOW DID THE , WE TALKED ABOUT THE MOTHER'S HO STILITY, BUT THE MOTHER , AS FO UND NOT ONLY BY THE TRIAL COURT BUT, ALSO, AS REPEATED BY THE FIFTH DISTRICT, THE MOTHER VIOLATED THIS PLAN REPEATEDLY POST-JUD GMENT.

OK AY. MAYBE WE ARE GO ING TO GO AROUND IN A CIRC LE. I DON'T THINK I HAVE HEARD YET AND MAYBE YOU HAVE GIVEN US YOUR BEST SHOT, AS TO WHYAN AGREEMENT THAT PROVIDES FOR ROTATING CUSTODY AND SHARED PARENTAL RESPONSIBILITY, SHOULD BE G IVEN LE SSER DEFERENCE THAN ONE THAT PLACED PRIMARY RESIDENTIAL CUSTODY WITH ONE PARENT AND HAD SHARED PARENTAL RESPONSIBILITY? SO WHAT IS YOUR POSITION ON ASSUMING THAT WE DISAGREE THAT THE CHANGE TEST APPLIES OR DOESN'T APPLY , THAT WE DISAGREE WITH THE FIFTH DISTRICT, WHAT IS YOUR P OSITION ON WHAT WHAT THE RECORD ESTABLISHES AS T O WHETHER THERE HAS BEEN A SUBSTANTIAL CHANGE OF CIRCUMSTANCES, AND MORE IMPORTANTLY, FOR ME , IS WHAT ABOUT THAT SECOND PRONG? DO YOU HAVE TO SHOW THAT WILL IS ACTUALLY , THAT THE CHILD IS GOING THROUGH SOME KIND OF TERRIBLE ME NTAL PROBLEMS BE FORE YOU CAN TRY TO SO LVE THIS PROBLEM ?

WITH THE COURT'S VERY , PERMISSION AND VERY BRIEFLY LET ME TAKE ONE MORE SHOT AND I WILL MOVE ON, BUT I WANT TO SAY THAT THERE IS ASTABILITY ISSUE HERE , AND THIS PARTIC ULAR PLAN , THE STABILITY OF IT WAS BASED ON THE PARENTING COORDINATOR AND THE COMPLIANCE , AND THE FIFTH DISTRICT HAD THE ROTATING CUSTODY PLAN BEFOR E IT DID NOT HAVE THE PRIMARY RESIDENTIAL BEFORE IT . SO IT MADE A DECISI ON AS TO THE TEST HERE. I F YOU ARE ASKING ME, AND IUNDERSTAND THAT YOU ARE , WHY THIS TEST SHOULD B E LES SER THAN SUBSTANTIAL CHANGE , FRANKLY I THINK THE BEST INTERESTS OF THE CHILDREN AS THEY DO IT IN NEW YO RK , SHOULD BE OUR PARAMOUNT CONCERN , BUT IN THIS INSTANCE THE ROTATING PLAN WAS BEFORE THE FIFTH DISTRICT , AND THE ROTATING PLAN DOESN'T HAVE THAT UNDERPINNING, IF YOU WILL , OF A PRE SUMES IN F AVOR A FTER PARENT, AND I BELIEVE THAT IS WHAT ALLO WED THEM T O GO THERE , BUT ADDRESSING THE SECOND AS PECT OF THIS , IT IS OUR POSITION, IT HAS BEEN OUR POSITION THAT THE SUBSTANTIAL CHANGE TEST , IFTHIS COURT WERE TO DECI DETHAT THIS APPLY , THAT THIS TRIAL COURT , IN ITS EFFORT TO BRING RELIEF TO THIS SITUATION , , JUST AS THE FIFTH FOUND , APPLIED ALL STANDARDS. IT APPLIED THE SUBSTANTIALCHANGE. IT APPLIED THE VI SITATION , WHICH WE ALREADY BRIEFEDBEFORE, AND IT APPLIED THE BEST INTERESTS, AND THE TRIAL COURT , CONTRARY TO WHAT HAS BEEN STATED , M ADE A FINDING THAT THE SUBSTANTIAL CHANGE WAS THE FAIL URE OF THIS PLAN , THAT THIS MOTHER HAD JUST BEEN TO TALLY DISRUPTIVE AND HAD ERADICATED IT AND THEN MADE THE CONCLUSION THAT THE BEST INTEREST S OF THE CHILD WERE NOT SE RVED BY THAT BUT WERE SERVED BY CHANGING CUSTODY . NOW , THE WORD DETRIMENT KEEPS COMING UP , AND , FIRST , BEFORE I ANSWER WHAT DEGREE OF DETRIM ENT I BELIEVE THE CASES SUPPORT , I WOULD LIKE TO AGAIN TURN TO THE GIBBSCASE, AND THE GIBBS CASE TALKS ABOUT THE G AME OF TELEPHONE LIKE WE PLAY IN CHILDHOOD AND EVERYBODY H EARS SOME THING DIFFERENT. WHETHER ONE PROMOTES WEL FARE , ESSENTIAL TO WELFARE , DISCRETION BEST INTERESTS , IT GOES ON TO SAY AND TH ISIS WHAT IS KEY HERE, WHILE ANY DECISION TO MODIFYDUCE TOWED WOULD AT ON MODIFY CUSTODY WOULD AT LE AST IMPLY THAT IT WOULD BE DETRIMENTALTO THE CHILD TO CHANGE THE PARENT , W E SUP PORT THIS LEGAL CONCLUSION, SO LONG AS THE FA CTUAL FINDINGS IN THE MODIFICATION ORDER OR THE CONTENT OF THE RE CORD , DEMONSTRATE THAT THEPETITIONER HAS MET THE EXTRAORDINARY BURDEN . IT IS OUR POSITION AND HAS BEEN, AS WE HAVE ARGUED , THAT BOTH THE RECO RD AND THE FINDINGS SUPP ORT THE DETRIMENT , AND THE DETRIMENTHERE, IS THAT THIS SI TUATION NEEDS SOME STA BILITY . AND THE COURT HAD MADE A FINDING THAT WE CAN BRING STABILITY WITHOUT A RESIDENTIAL PARENT , BY IMPLEMENTING THE PLAN WHICH FAILED. NOW , IS THIS CHILD DIAGNOSEABLE, EMOTIONALLY DISTURBED? NO , THANK GOD. BUT IS THIS CHILD POST-JUDGMENT , HAVING PSYCHOSOMATIC SI CK ISSUES WITH THE MOTHER? IS THIS CHILD BEING ASKED TO CALL THE THERAPIES OR THE THE THERAPIST OR THE COORDINATOR?IS THIS CHILD BEING INVOLVED IN THE MIDDLE OF THE DISPUTES BY THE MOTHER? YES , AND IS THE MOTHER'S FAI LURE TO FOCUS AT THE COORDINATOR SE SSIONS WHICH, BY THE WAY , WAS CURRENT UP UNTIL THE HE ARING , IN THE TRIAL COURT , DO THOSE HAVE AN ADVERSE IMPACT ON THE CHILD?YES. DOES HE HAVE TO BE DIAGNOSEABLE? I HOPE NOT .

WE ARE HERE TO DETERMINE BROAD ISSUES OF LAW , MORB SPECIFIC MORE THAN SPECIFIC FINDINGS OF FACT . LET ME RETURN, I HOPE, F ULL CIRCLE TO WHY WE ARE HERE INTHE CONFLICT AND JUST ICE QUINCE 'S PREVIOUS QUESTION,WHICH IS WHY SHOULD WE HAVE AN EXCE PTION HERE TO THE GENERAL R ULE , OF SUBSTA NTIAL CHANGE IN CIRCUMSTANCE S , SIMPLY BECAUSE IT IS A ROTATING CUSTODY ARRA NGEMENT ? WHAT IS SO DIFFERENT ABOUT A ROTATING CUSTODY ARRANGEMENT THAN EVERY OTHER T YPE O F ARRANGEMENT THAT N EEDS AN EXCEPTION , SO THAT YOU DON'THAVE TO PROVE A SUBSTANTIALCHANGE IN CIRCUMSTANCES?

A ROTATING CUSTODY ARRANGEMENT , TRADITIONALLY , HAS NO PRIMARY RESIDENTIAL PARENT, NO CUSTODIAL PARENT , AND I WOULD SUBMIT TO THIS COURT THAT THAT

WHY DOES THAT MAKE A LEGAL DIFFERENCE?

I THINK IT MAKES A LE GA L DIFFERENCE, BECAUSE THESYSTEM IS SET UP TO SUBSTANCEIATE STABILITY ANDTO HAVE AN IN-CHARGE TYPE OF INDIVIDUAL, SOME ONE WHO IS LOOKED TO NOT T O PREV ENT THE OTHER ONE FROM SE EING THE CHILD AND BEING INVOLVED IN SHARED PARENTAL RESPONSIBILITY, BUT TO HAVE A BASE, A FOUNDATION FOR THE CHILD.

IF YOU WANTED TO HAVE ANOTHER STANDARD, COULDN'T YOU JUST PUT IN THE , DEGREE IN THE FINAL JUDGMENT AGREE IN THE FINAL JUDGMENT , STIPULATE, THAT THIS IS A PROVISIONAL TYPE OF ARRANGEMENT, AND THAT , IF THIS IS NOT WORKING OUT , IF IT, IF THE ARRANGEMENT FAILSAS THE DISTRICT COURT SA IDIN THIS CASE, THEN THE COURT CAN GO BACK TO S QUARE ONE AND DETERMINE A MORE PERMANENT CUSTODY ARRANGEMENT . CAN'T YOU AGREE IN THE FINAL JUD GMENT TO DO THAT , R ATHER THAN TO MAKE THAT AN ISSUE OF L AW FOR EVERY CASE ?

YOU COULD BUT I THINK THAT THE BETTER RE ASON DECISION WOULD BE CONSISTENCY , AND SI NCE ALL ROTATING CUSTODY ARRANGEMENTARE NOT NECESSARILY MEDIATED AND STIPULATED, COURTS HAVE ENTERED THEM, AND I MIGHT M ENTION RIGH T NOW , BECAUSE THIS IS MY OBLIGATION TO THE COURT THAT THERE IS, I JUST DISCOVERED PE NDING , A , CERTIFIED AS IN CONF LICT WITH OUR INDICATES WITH OUR CASE, I THINK IT IS JOHNSON V ADAIR. I CAN GET THE NAME OF IT , BUT THAT WAS AN INSTANCE OF WHERE THE COURT HAD ENTERED THE ROTATING CUSTODY T WASN'T STI PULATED .

BUT THE CO URT CAN ENTER THE ROTATING CUSTODY AND SAY IN THE ORDER THIS IS SUBJECT TO REVISITING IT IN SIX MONTHS OR A YEAR , AND I F THE ROTATING CUSTODY DOESN'T WORK OUT, THEN WE WILL HAVE A FULL HEARI NG TO DETERMINE THE BEST INTERESTS OF THE CHILD?

I THINK , YOUR HONOR , THAT THE BEST INTERESTS OF THE CHILD WOULD BE BETTER SERVED TO HAVE SOME CONSISTENCY AND SOME DIRECTION FROM THIS COURT. I D ON'T THINK THAT PARENTS, WHEN THE Y ARE TR YING T O MEDIATE CUSTODY , NEED ANYOTHER ISSUES . I THINK THEY SHALL BE ENCOURAGED TO O PE N AND EQUALACCESS, AND I THINK THAT , IF YOU PUT THE TEST ON THETABLE, TOO, YOU KNOW , THERE IS AN OTHER NAIL , IF YOU WILL , IN THE AGREEMENT TYPE CO FFIN , AND I THINK IT IS REAL IMPORTANT, JUST LIKE THE CASES OUTSIDE OF THIS STATE HAVE DONE, IS TO CONSIDER THE BEST INTERESTS OF THE CHILDREN FIRST, WH EN YOU HAVE A DYSFUNCT IONAL ROTATING CUSTODY ARRANGEMENT . IT SHOULD GIVE WAY TO THE POTENTIAL FOR MORE PROTECTED LITIGATION.

WHY WOULDN'T THAT ARGUMENT APPLY TO ANY CUSTODY ARRANGEMENT, ROTATING OR NOT? WHY SHOULDN'T YOUR AR GUMENT SAY, WELL , IN ANY CUSTODY ARRANGEMENT, IT SHOULD BE THE BEST INTERESTS OF THE CHILD AND WE SHOULD GET RIDOF A SUBSTANT IAL CHANGE IN CIRCUMSTANCES STANDA RD. TIME NOT MAK ING THAT ARGUMENT, OF COURSE, BECAUSE IT WASN'T BEFORE THE COURT BELOW .

IT SEEMS TO ME WHAT IS INCONSISTENT IS TO HAVE DIFFERENT STANDARDS , DEPENDING ON THE TYPE OF CUSTODY.

I THINK THAT WE CAN TAKE A LESSON FROM THE LEGAL BASIS FOR THE TEST , AND THERE IS NOT A GOOD ROAD FOR DIFFERENTIATION.I THINK WHEN WE LOOK TOE THE CASES OUT-OF-STATE TO THE CASES OUT-OF-STATE, EVEN THE KANSAS CASE WHICH WE C I TED , AND EVEN THE COE CASE , I THINK THERE HAS TO BE A REASON FOR WHY YOU HAVE THAT PRIMARY RESIDENTIAL PARENT , AND TYPICA LLY THAT PRIMARY PARENT SI TUATION I S HEAVILY LITIGATED AND THE COURT LOOKS AT IT AND DETERMINES WHO IS BEST, AND SO THEREFORE THE LAW HAS DEVELOPED

SO HOW DO YOU DETERMINE? YOU KEEP SAY HAD GONE THERE IS NO PRIMARY RESIDENTIALPARENT, A AND CERTAINLY THE O RDER DOES NOT SAY SO, BUTIN THIS PARTICULAR SITUATION , WE HAVE ONE PARENT WITH THECHILD FOR NINE D AYS?

YES.

AND THE OTHER PARENT HAS THE CHIL D FOR FIVE DA YS, ANDTHEN IT GOES BACK TO THE OTHER PARENT FOR NINE DAYS, SO IT SEEMS TO ME THERE I S A, CERTAINLY A SUBSTANTIAL DISPARITY IN THE NUMBER , IF YOU ARE JUST LOOKING AT THENUMBER OF DAYS THAT THECHILD IS WITH EACH PARENT , SO I AM NOT SURE THAT JUST BECAUSE YOU DON'T SAY THAT THE PARENT WHO HAS THE NINE DAYS IS THE PRIMARY RESIDENTIAL PARENT , THAT WE ARE TA LKING ABOUT SOMETHING THAT IS SUBSTANCEALLY DIFFERENT.

WELL , I WOULD SAY TO YOURHONOR THAT, IN THIS CASE, IN THE CONS ENT FINAL JUDGMENT THERE , IS A SPECIFIC FINDINGBY THE TRIAL COURT , THAT THERE IS NO PRIMARY RESIDENTIAL PARENT , AND THE FIFTH DISTRICT INCLUDED THAT IN ITS TEST , AND I WILL SAY TO THE COURT THAT THAT FINDING IS PARAMOUNT, BECAUSE THE SYSTEM LOOKS TO A BASE, A BASIS OF STABILITYAND CON TROL FOR THE CHILD, AND WHEN YOU HAVEN'T ADJUDICATED THAT FACT, JUST LIKE THE FIFTH SAID, IT S EEMS VERY LO GICAL I N THIS INSTANCE , TO GO BACK TO SQUARE ONE. IT MAKES SENSE , AND MAY I , ALSO , QUICKLY AD D, I SE E I AM OUT OF TIME , BUT I DISAGREE STRENUOUSLY WITH THE FACT THAT THE FIFTH DISTRICT DECIDED THAT THERE WAS ANY SUBSTANTIAL CHANGE OR OTHER WISE AS WAS ARGUED BEFORE , THE FIFTH DISTRICT POINTED TO THE FACT THAT THERE WAS NO DIAGNOSE