WILLIAM R. MILLER, APPELLANT,
v.
SANDRA MILLER, APPELLEE
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In this dissolution of marriage appeal, the court affirmed a trial judge's split custody award dividing three children between the parents, despite the general legal preference for awarding custody of young children to the mother when both parents are fit. The appellate court deferred to the trial judge's factual findings and discretionary determination that split custody served the children's best interests.
The trial court did not abuse its discretion in awarding split custody. Although the general rule favors awarding custody of infant children to the mother when other factors are equal, the trial judge's determination that split custody served the best interests of these particular children was supported by substantial competent evidence and the trial judge's direct observation of the parties and consideration of relevant criteria. The financial aspects of the judgment were also supported by sufficient evidence.
[1] A trial court's financial determinations in a dissolution of marriage judgment will be affirmed if supported by sufficient evidence, even if the financial evidence is spa…
[2] In child custody determinations, the mother of infant children is generally given prime consideration when other factors are equal.
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Join FLexlaw to unlock all legal intelligence“the law in this State remains to the effect that the mother of infant children shall receive prime consideration when other factors are equal”
Establishes the controlling legal principle regarding maternal preference in custody cases in Florida
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Join FLexlaw to unlock all legal intelligenceThe parties had three children ages 12, 7, and 4 at the time of dissolution. The oldest child was the natural child of the wife and adopted by the hus…
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PER CURIAM.
In this appeal and cross appeal from a final judgment of dissolution of marriage the appellant-husband contests the financial aspects of the final judgment and the appellee-wife contests the split custody award.
We have reviewed the entire record in this cause which consisted solely of the testimony of the parties and two psychologists who testified concerning the custody issue. Although the evidence regarding the respective financial positions of the parties is rather sparce we find there is sufficient evidence to support the conclusions of the trial judge in this respect.
Concerning the split custody award the trial judge specifically determined that both were fit and proper persons to have custody of the children. Under such circumstances one would expect the trial judge to award custody of three young daughters to the mother.
Nevertheless, the judge awarded custody of the oldest child, who was the natural child of the wife and adopted by the father, to the mother. Custody of the two younger children, both of whom were the natural children of the parties, was awarded to the father. Notwithstanding the provisions of Section 61.13(2)(b), Florida Statutes (1977) which provides that the father of a child shall be given the same consideration as the mother in determining custody, the law in this State remains to the effect that the mother of infant children shall receive prime consideration when other factors are equal. At the time of the dissolution in this case the children were 12, 7 and 4 years of age and normally, other factors being equal, the mother should be given prime consideration for their custody. It is also well established that the law does not favor separating the children of one family from each other except for the most compelling reasons. Arons v. Arons, 94 So. 2d 849 (Fla.1957).
Considering the entire record in this case, which we have reviewed in detail, we find substantial competent evidence to support the trial court’s conclusion that custody of the children should be divided between the parents. All other factors were not equal albeit the court found both parties to be fit and proper persons. On the basis of the record before us the trial court could well have determined that the best interests and welfare of the children would be served by his ultimate conclusion.
Perhaps we, sitting as triers of the facts, may have reached a different conclusion. The trial judge, however, had the parties before him and considered all of the necessary criteria including, but not limited to, their background, their daily habits, and the desires of the children as expressed in the testimony of the two psychologists and the parents. Absent a clear showing of an abuse of his discretion we may not substitute our judgment for that of the trial judge. Dinkel v. Dinkel, 322 So. 2d 22 (Fla.1975). Such an abuse of discretion has not been demonstrated in the case sub judice.
The final judgment is AFFIRMED.
CROSS and MOORE, JJ., and PAUL, MAURICE M., Associate Judge, concur.
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Young v. Hector, 740 So. 2d 1153 (Fla. 3d DCA 1998)…e Reinhart v. Reinhart, 291 So. 2d 103, 105 (Fla. 1st DCA 1974) (stating “[i]t may well be that were we permitted to hear the case de novo we might enter a different final judgment. However, such is not our prerogative.”); see also Miller v. Miller, 371 So. 2d 565, 566 (Fla. 4th DCA 1979) (holding that appellate court may not substitute its judgment for that of trial judge). At the outset, it is important to emphasize that both the mother and father are very loving and capable parents. Nobody disputes this f…
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Collier v. Collier, 384 So. 2d 697 (Fla. 4th DCA 1980)…ether in the same family unit. Arons v. Arons, 94 So. 2d 849 (Fla.1957). However, like most rules of law this proposition is not absolute and is subject to a determination as to what custody arrangement would be best for the child. Miller v. Miller, 371 So. 2d 565 (Fla. 4th DCA 1979). Section 61.13, Florida Statutes (Supp 1978) sets forth the general standards that a trial court should consider in determining what is best for the child: (2)(b) The court shall award custody and visitation rights of minor chi…
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Nilsa Bache v. Saeed Bashir, 482 So. 2d 546 (Fla. 4th DCA 1986)…out that as a general rule the separation of siblings is disfavored and should be done only under the most compelling circumstances. Arons v. Arons, 94 So. 2d 849 (Fla.1957); Collier v. Collier, 384 So. 2d 697 (Fla. 4th DCA 1980); Miller v. Miller, 371 So. 2d 565 (Fla. 4th DCA 1979). No compelling reasons have been shown in the instant ease for separating the parties’ son and daughter. The only evidence tendered in support of the proposition that the child’s best interests would be served by permitting him…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dinkel v. Dinkel, 322 So. 2d 22 (Fla. 1975)
- Arons v. Arons, 94 So. 2d 849 (Fla. 1957)