BONITA MARIE GARVEY, APPELLANT,
v.
MICHAEL JOSEPH GARVEY, APPELLEE
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A Florida appellate court reversed a trial court's modification of a custody order that had placed the parties' youngest child in joint custody with alternating six-month periods. The court held that the modification lacked evidence of substantial change in circumstances and was contrary to expert psychological evaluation recommending the original maternal custody arrangement remain in place.
The court reversed the modification order, holding that there was no evidence of substantial change in circumstances warranting modification of custody. While a child's preference is a factor to consider, it cannot control custody disposition, and the trial court erred in modifying custody contrary to the expert psychological evaluation recommending the original maternal custody arrangement.
[1] Modification of a final judgment of dissolution regarding child custody requires a finding of a substantial change in circumstances since the original judgment and detrim…
[2] A child's preference alone is insufficient to control the disposition of child custody.
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Join FLexlaw to unlock all legal intelligence“A trial court has less discretion in modifying the custody provisions of a final judgment of dissolution than in making the original determination.”
Establishes the heightened standard for modifying custody orders compared to initial determinations
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Join FLexlaw to unlock all legal intelligenceThe parties originally stipulated that custody of four minor children would be with the mother subject to the father's reasonable visitation rights, i…
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CAMPBELL, Judge.
This is an appeal from the modification of a final judgment of dissolution whereby custody of the parties’ youngest child, Mi chael, was split between the mother and father for alternate six-month periods.
In the original dissolution proceedings, the parties stipulated that custody of the four minor children, ages six to twelve, would be in the mother, subject to the father’s reasonable visitation rights. This stipulated custody arrangement was incorporated into the final judgment of dissolution entered on March 26, 1979. Approximately four months later, the father moved for an order placing the children in the parties’ joint custody, alleging that visitation arrangements had been unsuccessful. By stipulation, the parties and the minor children underwent psychological evaluations. After receiving the psychologists’ reports, hearing the testimony of the parties, and conducting an in-chambers interview of the parties’ four children, the court entered an order modifying the custody provisions of the final dissolution, and placing the parties’ youngest child, Michael, then seven, in the joint custody of the mother and father for alternate six-month periods.
A trial court has less discretion in modifying the custody provisions of a final judgment of dissolution than in making the original determination. Frye v. Frye, 205 So. 2d 310 (Fla. 4th DCA 1967). To justify modification, the court must find a substantial change in circumstances since the date of the original judgment and detriment to the children if custody is not changed. Robinson v. Robinson, 333 So. 2d 526 (Fla.2d DCA 1976); Hutchins v. Hutchins, 220 So. 2d 438 (Fla.2d DCA 1969).
There was no evidence that the mother was an unfit parent; the father conceded this point. We find no evidence indicative of any substantial change of circumstances which would warrant a change of custody as it pertained to the minor child, Michael. In fact, the only basis for the trial court’s modification which is apparent from the record is that Michael had stated a preference to live with his father. Although the preference of a child is one factor to be considered, it cannot control the disposition of custody. Gall v. Gail, 336 So. 2d 10 (Fla.2d DCA 1976). We also recognize that a trial court does not surrender its discretion to psychologists or other experts testifying concerning the welfare of children where best interests are to be protected by the court. Here, however, the only evidence as to the children’s welfare was contained in the lengthy report of the psychologist who examined both parents. The report concluded that,
there is no question in this examiner’s mind that the best interests of these children is best served by the court’s current custody placement. . . . Based oil my evaluation of these parents, I feel that the granting of any type of joint custody (as requested by Mr. Garvey) would be extremely detrimental to the best interests of these children.
Accordingly, the provision of the modification order placing Michael Garvey in the parties’ joint custody is reversed.
RYDER, Acting C. J., and DANAHY, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Zediker v. Zediker, 444 So. 2d 1034 (Fla. 1st DCA 1984)…me degree of discretion as it does in entering the original decree.” Teta v. Teta, 297 So. 2d at 646 (emphasis supplied). Accord Culpepper v. Culpepper, 408 So. 2d 782 (Fla. 2d DCA 1982); Stricklin v. Stricklin, 383 So. 2d at 1184; Garvey v. Garvey, 383 So. 2d 1172 (Fla. 2d DCA 1980); Adams v. Adams, 385 So. 2d 688 (Fla. 3d DCA 1980); Baker v. Baker, 360 So. 2d 19 (Fla. 4th DCA 1978); Robinson v. Robinson, 333 So. 2d 526 (Fla. 2d DCA 1976); Nicholson v. Nicholson, 311 So. 2d 676 (Fla. 4th DCA 1975). Our positi…
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Karie Lynn Gibbs v. Gibbs, 686 So. 2d 639 (Fla. 2d DCA 1996)…t does in determining custody at the time of the original judgment. Id. at 527 (citing Frye v. Frye, 205 So. 2d 310 (Fla. 4th DCA 1967)). The Robinson court then observed that there was no evidence that the mother was “unfit.” In Garvey v. Garvey, 383 So. 2d 1172 (Fla. 2d DCA 1980), our court considered the custody change of a seven-year-old boy in circumstances similar to those in this case. We recognized that the trial court had less discretion in modifying the custody provisions of a final judgment than i…
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McINTYRE v. Nance Ruth McINTYRE, 452 So. 2d 14 (Fla. 1st DCA 1984)…nt. See, e.g., Stricklin v. Stricklin, supra; Ritsi v.Ritsi, supra; Costa v. Costa, 429 So. 2d 1249 (Fla. 4th DCA 1983). The third factor, standing alone, is also insufficient. Burley v. Burley, 438 So. 2d 1055 (Fla. 4th DCA 1983); Garvey v. Garvey, 383 So. 2d 1172 (Fla. 2d DCA 1980).1 Adding these factors together should not otherwise make them sufficient in this case. Apparently cognizant of the insufficiency of the trial court’s findings, the majority opinion makes additional findings based on unresolved d…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Frye v. Frye, 205 So. 2d 310 (Fla. 4th DCA 1967)
- Hutchins v. Hutchins, 220 So. 2d 438 (Fla. 2d DCA 1969)
- Robinson v. Robinson, 333 So. 2d 526 (Fla. 2d DCA 1976)
- Gall v. Gall, 336 So. 2d 10 (Fla. 2d DCA 1976)