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Is a Florida Judge Required to Enforce a Private Child Custody Agreement Signed by the Parents?


Child custody is often a contentious issue between parents who do not live together. Of course, such disputes are never good for the child who is caught in the middle. That is why Florida courts encourage parents to come up with a plan for addressing custody and visitation issues.

But it is important to understand that whatever agreement the parents may reach still needs to be approved by the court. And the judge does not simply have to take the parents’ plan at face value. To the contrary, the court must make its own determination as to what will be in the “best interest” of the child.

Appeals Court: Best Interest of Child Takes Priority Over Parents’ Contract

Put another way, a child custody agreement is not the same thing as a business contract. The courts are not supposed to blindly enforce a deal just because you and the other parent agreed to it. A recent decision from the Florida Fourth District Court of Appeals, Cappola v. Cappola, reaffirmed this principle.

In this case, a divorced couple entered into a “private agreement” regarding the custody and living arrangements for their minor child. The agreement provided the child would live with the father in Pasco County. The mother, however, later asked a judge to modify the agreement so the child could continue living with her in Broward County “until final modification proceedings concluded.”

A Broward County judge refused the wife’s request, however, citing the private agreement. The judge emphasized both parents previously agreed the father would take custody of the child by a certain date. When the mother protested, the judge replied his job was “to uphold contracts and uphold the law.” He also reminded the mother, “This is a contract that you signed, ma’am.”

In explaining his decision to the parents in open court, the trial judge did not make any findings that enforcing the prior agreement was actually in the child’s best interest. But the court did make reference to this in a subsequent written order. Nevertheless, the mother argued on appeal to the Fourth District that the judge’s oral ruling made it clear he based his decision solely on the private agreement.

The Fourth District agreed and held the trial court abused its discretion. Under Florida law, a judge’s “oral pronouncement must control over a later written order.” And here, that oral pronouncement did not consider the child’s best interest. The judge claimed he was bound by the parents’ agreement. But the appeals court said that was not the correct application of Florida law. To the contrary, a trial judge “is not bound by an agreement of parents regarding child support, custody, or visitation.” The court is bound to make its own “independent” review of the agreement.

Speak with a Florida Child Custody Attorney Today

None of this is to suggest that parents should not make every effort to resolve their custody and visitation issues together. Rather, the point is that the court system has its own role to fulfill in ensuring your child thrives. If you have additional questions or concerns and need advice from an experienced Boca Raton child custody lawyer, contact WiseLieberman, PLLC, today at 561-488-7788 to schedule a free consultation.




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