JOHN H. MARSHALL, III, APPELLANT,
v.
ALLYSON M. MARSHALL, APPELLEE
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In a child custody dispute, the father appealed the trial court's award of custody to the mother of their two-year-old child. The appellate court reversed, holding that the tender years doctrine cannot be applied as an inflexible rule favoring the mother, and that the best interests of the child standard requires individualized analysis of all relevant factors.
The tender years doctrine does not mandate automatic custody awards to the mother. When the evidence shows the father is better able to serve the child's best interests and welfare, custody should be awarded to the father. The tender years of the child is one relevant factor among many, but does not override the fundamental determination of the child's best interests.
[1] The welfare of a child is the prime consideration in any child custody proceeding.
[2] A trial court's findings in a child custody proceeding may not be reversed absent an abuse of discretion, which requires a lack of competent substantial evidence to susta…
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Join FLexlaw to unlock all legal intelligence“In any child custody proceeding, the welfare of the child is the prime consideration.”
Establishes the fundamental principle governing all custody determinations
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Join FLexlaw to unlock all legal intelligenceA custody dispute involved a two-year-old child. The trial court awarded custody to the mother based on the tender years doctrine. The evidence showed…
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PER CURIAM.
This cause is before us on appeal from a final judgment awarding custody of a two-year-old child to the mother. The father contends the evidence fails to establish that the award is in the best interests of the child, and that the trial court misapplied the doctrine of tender years. We agree and reverse.
In any child custody proceeding, the welfare of the child is the prime consideration. Dinkel v. Dinkel, 322 So. 2d 22 (Fla.1975). We recognize that this court may not reverse the trial judge’s findings absent a showing of abuse of discretion, which requires a lack of competent substantial evidence to sustain the findings of the trial judge. Here the evidence strongly indicates the mother lacks maturity and has little inclination or ability to give the care, attention and guidance the child requires. The father, on the other hand, has been consistent in his duties as a parent and has shown himself willing and able to provide the emotional stability and care needed for the child. Independent testimony, including that of the home study worker, who recommended custody be given to the father, supports the father’s claim. No factor other than the tender age of the child appears in the mother’s favor. This court in Snedaker v. Snedaker, 327 So. 2d 72 (Fla. 1st DCA 1976) states the rule on proper application of the tender years doctrine, in part as follows:
“Other things being equal, prime consideration should be given to the mother of a child of tender years in custody proceedings. .
However, when the evidence reveals that ‘other things’ are not equal then the primary consideration accorded the mother is subservient to the best interests and welfare of the child.
* * * * * *
When, as here, there is a dearth of evidence in support of the position of the mother, as opposed to overwhelming evidence indicating that it is for the best interests of the child for its custody to be awarded to its father, any ‘presumption,’ ‘prime consideration,’ or ‘natural edge,’ abiding with the mother is overcome and custody should be awarded to that parent in whose custody the best interests of the child will be served, in light of the evidence adduced.” (emphasis theirs)
Here we come to the inescapable conclusion that the doctrine of tender years has been misapplied as a mandate requiring the award of custody to the mother. Florida Statute § 61.13(2)(b) provides:
“Upon considering all relevant factors, the father of the child shall be given the same consideration as the mother in determining custody.”
The tender years of the child is one of the relevant factors to be considered but does not override the basic determination which must in each instance be the welfare and best interest of the child.
Accordingly, the judgment below is REVERSED and REMANDED for award of custody to the father and proceedings consistent herewith.
ERVIN, Acting C. J., and BOOTH and LARRY G. SMITH, JJ., concur.
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Stamm v. Marjorie Faith (Biggs) Stamm, 489 So. 2d 851 (Fla. 5th DCA 1986)…s an appeal from a judgment awarding primary residential responsibility of a child. In any child custody proceeding the prime consideration is the welfare of the child. Miraglia v. Miraglia, 462 So. 2d 507 (Fla. 4th DCA 1984); Marshall v. Marshall, 375 So. 2d 1082 (Fla. 1st DCA 1979). [*852] All factors affecting the best interest and welfare of the child must be considered. Section 61.13(3), Florida Statutes (1985) lists ten factors which the trial court should consider in evaluating and determining the best…
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Maran v. Maran, 384 So. 2d 950 (Fla. 4th DCA 1980)…the trial court properly concluded that the other essential factors were not equal and therefore that the evidence supported an award of custody to the husband, rather than the wife, as being in the best interests of the child. Marshall v. Marshall, 375 So. 2d 1082 1st DCA 1979). Accordingly, the final judgment of the trial court is hereby affirmed, GLICKSTEIN and HURLEY, JJ., concur.…
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Dykes v. Dykes, 395 So. 2d 188 (Fla. 5th DCA 1981)…e, we cannot say that the trial judge abused his discretion in finding that the award of custody to the father rather than to the mother was in the best interest of the child. Maran v. Maran, 384 So. 2d 950 (Fla. 4th DCA 1980); Marshall v. Marshall, 375 So. 2d 1082 (Fla. 1st DCA 1979). In an amended motion for rehearing or new trial after the final judgment, appellant contended that because appellee’s father was a circuit judge in the circuit where the action was heard, and because of his alleged “interventio…
Authorities Cited
- Dinkel v. Dinkel, 322 So. 2d 22 (Fla. 1975)
- Snedaker v. Snedaker, 327 So. 2d 72 (Fla. 1st DCA 1976)