ROSALIE J. WALFISH, APPELLANT,
v.
RICHARD WALFISH, APPELLEE
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Mother appeals trial court's order changing custody of two minor children from her to their father. The appellate court reversed, holding that the record did not support the change of custody because it failed to demonstrate the mother was unfit or that the change was in the children's best interests.
The court reversed the trial court's custody modification, holding that the evidence failed to establish either that the mother was unfit or that a change of custody was required for the children's best interests. A substantial change in circumstances or material facts must be shown to modify a custody decree, and the trial court abused its discretion in ordering the change.
[1] A change of child custody requires proof of a substantial change in circumstances.
[2] Modification of a custody decree is permissible only upon a showing of materially altered conditions arising subsequent to the decree or material facts unknown to the cou…
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Join FLexlaw to unlock all legal intelligence“As a prerequisite to a change in custody, petitioner must prove a substantial change in circumstances.”
Establishes the legal standard required to modify an existing custody decree
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Join FLexlaw to unlock all legal intelligenceParents' marriage was dissolved in 1973, with the mother awarded custody of their two daughters. Six years later, the father petitioned to change cust…
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BASKIN, Judge.
This appeal challenges the decision of the trial court which changed custody of the two minor children of the parties from the mother to the father. We find the record does not support the change of custody as a matter of law and reverse.
When the marriage of the parties was dissolved in 1973, the mother was awarded custody of their two daughters. Six years later, the father filed a petition for change of custody of the two children then aged eight and ten.
During the evidentiary hearing on the petition for change of custody, the father presented the testimony of a psychologist who had examined the children and interviewed the parents. This psychologist testified that the children had expressed a desire to live with their father, but the doctor specifically stated that the mother had committed no overt act which would render her unfit. Unfortunately, the psychiatrist who had been treating the children was not available to testify at the evidentiary hearing.
Both parents presented testimony of neighbors and relatives. Those persons testifying on behalf of the father averred that, on occasion, the mother’s home had been dirty and that the children had been unkempt. They also testified that the father was a good parent and took good care of the children when they visited him. Friends and family of the mother, on the other hand, testified that she was a good and concerned parent.
As a prerequisite to a change in custody, petitioner must prove a substantial change in circumstances.
[A] decree may not be substantially amended or changed thereafter, except upon a showing of materially altered conditions arising subsequent to the entry of the decree or of material facts bearing on the question of custody which were in existence at the time of the decree but were unknown to the court on the date of its entry. And even in such cases a substantial amendment or change in the decree should not be made except for the welfare of the child.
Sayward v. Sayward, 43 So. 2d 865, 868 (Fla.1949). The trial court does not have the same degree of discretion to modify custody as it does to enter an original , decree. Jacobs v. Ross, 304 So. 2d 542 (Fla. 3d DCA 1974); Frye v. Frye, 205 So. 2d 310 (Fla. 4th DCA 1967).
The testimony presented to the trial court disclosed that the father was a fit parent, but it failed to show that the mother was unfit or to establish that a change, of custody was required to further the best interests of the children.1 The trial court, therefore, abused its discretion in ordering the change of custody. Robinson v. Robinson, 333 So. 2d 526 (Fla. 2d DCA 1976); Hutchins v. Hutchins, 220 So. 2d 438 (Fla. 2d DCA 1969); and Nixon v. Nixon, 209 So. 2d 878 (Fla. 3d DCA 1968).
The order of the trial court is reversed and the cause is remanded for further proceedings in accordance with this decision.
. The trial judge also considered comments made to him by the children during an off-the-record interview he conducted outside the presence of the parties or their attorneys. The judge refused to disclose what transpired during those proceedings and declined to give counsel the opportunity to rebut any matters presented during the interview or to cross-examine the children. The wishes of the child may properly be considered by the trial court in making a determination of custody, In re Gregory, 313 So. 2d 735 (Fla.1975); Nixon v. Nixon, supra, and the wisdom of interviewing the children outside the presence of the parents is obvious. We must question, however, the propriety of failing to make the substance of the interview a part of the record if for no other reason than to preserve the matter for appeal; but, in light of the disposition of the case, we do not reach the merit of this point on appeal.
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Garcia v. Duffy, 492 So. 2d 435 (Fla. 2d DCA 1986)…or the employer to hire the employee in light of the information he knew or should have known. See, e.g., Williams; Nazareth v. Herndon Ambulance Service, Inc., 467 [*441] So. 2d 1076 (Fla. 5th DCA 1985); see also, DeJesus v. Jefferson Stores, Inc., 383 So. 2d 274 (Fla. 3d DCA 1980). Whether an investigation was required, and if so, which factors are to be considered in determining whether the investigation was reasonable or appropriate, are two questions that will vary with the circumstances of each case. I…
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Nazareth v. Herndon Ambulance Serv., Inc., 467 So. 2d 1076 (Fla. 5th DCA 1985)…f an employee, unless they were committed during the course of the employment and to further a purpose or interest, however excessive or misguided, of the employer. See Weiss v. Jacobson, 62 So. 2d 904 (Fla.1953); De Jesus v. Jefferson Stores, Inc., 383 So. 2d 274 (Fla. 3d DCA 1980); Lay v. Roux Laboratories, Inc., 379 So. 2d 451, (Fla. 1st DCA 1980); Martin v. United Securities Services, Inc., 373 So. 2d 720 (Fla. 1st DCA 1979); Andrews v. Norvell, 65 Ga.App. 241, 15 S.E. 2d 808 (1941); W. Prosser, Torts, §…
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Perez v. Perez, 767 So. 2d 513 (Fla. 3d DCA 2000)…ren at the expense of the rights of a parent. 433 So. 2d at 1253 (citation omitted; emphasis in original). Other Third District cases in which there is discussion of "detriment” based on the facts of the particular case include Walfish v. Wolfish, 383 So. 2d 274, 276 (Fla. 3d DCA 1980), and Stewart v. Stewart, 261 So. 2d 864, 866 (Fla. 3d DCA 1972). . This court has, to be sure, outlined particular factual circumstances when detriment must be shown. See Ritsi v. Ritsi, 160 So. 2d 159 (Fla. 3d DCA 1964). Bu…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In re Gregory v. Gregory, 313 So. 2d 735 (Fla. 1975)
- Frye v. Frye, 205 So. 2d 310 (Fla. 4th DCA 1967)
- Sayward v. Sayward, 43 So.2d 865 (Fla. 1949)
- Hutchins v. Hutchins, 220 So. 2d 438 (Fla. 2d DCA 1969)
- Robinson v. Robinson, 333 So. 2d 526 (Fla. 2d DCA 1976)
- Nixon v. Nixon, 209 So. 2d 878 (Fla. 3d DCA 1968)
- Jacobs v. Ross, 304 So. 2d 542 (Fla. 3d DCA 1974)