KAREN E. STRICKLIN, APPELLANT,
v.
ROBERT E. STRICKLIN, APPELLEE
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Karen Stricklin appeals a trial court's order transferring child custody from her to her ex-husband Robert. The appellate court reversed, holding that the trial court misapplied the law governing custody modifications by failing to find a substantial change in circumstances and inadequately analyzing the child's best interests.
The trial court erred in transferring custody. To modify a custody award, there must be competent, substantial evidence of both a material change in the condition of the parties and that the child's best welfare will be promoted by the change. The trial court's reliance on the father's remarriage and improved financial circumstances alone, without finding adverse effects on the child from the mother's circumstances, was insufficient to justify the transfer.
[1] Modification of a child custody award requires competent, substantial evidence of a substantial or material change in the condition of the parties and that the child's be…
[2] A trial court's discretion in modifying a custody award is more limited than its discretion in entering the original decree.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“To warrant modification of a custody award, there must be competent, substantial evidence that (1) there has been a substantial or material change in the condition of the parties and (2) the best welfare of the child will be promoted by the change in custody.”
Establishes the two-part legal test required for any custody modification under Florida law.
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Join FLexlaw to unlock all legal intelligenceThe parties executed a stipulation resolving custody in their 1977 dissolution judgment, awarding custody to the wife. Subsequently, problems arose co…
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FRANK D. UPCHURCH, Jr., Judge.
This is an appeal from a final order modifying a final judgment and changing child custody.
In the original dissolution proceedings, husband and wife executed a stipulation resolving custody, alimony and support. The stipulation was incorporated in the judgment which was entered August 2, 1977, awarding custody to the wife. Subsequently, problems developed concerning visitation and proper care culminating in a “motion for determination of custody” filed by the husband. The court ordered a social investigation. After the hearing, the court entered the order, now appealed, transferring custody to the husband. The single question presented is whether the court erred in transferring custody.
We are extremely reluctant to interfere with a custody determination of a trial judge. His opportunity to observe the parties and the child gives him an important advantage over this court which can only rely upon the cold record. In this instance, however, there has been a departure from established rules, commanding a reversal.
When considering a petition for modification of custody, the court does not have the same degree of discretion as it does in entering the original decree. Robinson v. Robinson, 333 So. 2d 526 (Fla. 2d DCA 1976); Avery v. Avery, 314 So. 2d 198 (Fla. 1st DCA 1975). To warrant modification of a custody award, there must be competent, substantial evidence that (1) there has been a substantial or material change in the condition of the parties and (2) the best welfare of the child will be promoted by the change in custody. Sanders v. Sanders, 376 So. 2d 880 (Fla. 1st DCA 1979). The order changing custody need not include a finding that the prior custodial parent is unfit. Negative factors in the circumstances of the custodial parent when coupled with the intervening special needs of the child and increased ability of the non-custodial parent to provide for the child, may be sufficient to justify change. Jayne v. Dennison, 284 So. 2d 237 (Fla. 2d DCA 1973). However, the fact that the father had remarried, that the mother was working while her parents cared for the child, that she was having marital difficulties and that she had changed her place of residence several times, was not sufficient to justify a change in custody absent a finding that the child was adversely affected by the conditions. Spradley v. Spradley, 312 So. 2d 215 (Fla. 1st DCA 1975). Likewise, the remarriage of the non-custodial parent and the acquisition' by that parent of a suitable home are not changes of circumstances which of themselves justify a transfer. Ritsi v. Ritsi, 160 So. 2d 159 (Fla. 3d DCA 1964).
In the case before this court, the trial court found both parties to be physically, mentally and morally fit to care for the child. Custody, however, was transferred to the husband predicated upon a showing of a more stable environment which apparently was based on his remarriage and work success. The social investigation described the child as a healthy, happy, well-behaved child and developing in a normal fashion.
During closing argument, counsel for Mrs. Stricklin argued that it was necessary for petitioner to show a substantial change in circumstances. The following exchange took place:
The Court: Counsel, the law has been changed since those cases came out. The statute no longer requires a change of circumstances.
Mr. Lev: On modification?
The Court: That’s right.
It is clear that the lower court in its decision to change custody misunderstood the requirements discussed in Sanders v. Sanders, and we must therefore reverse.
REVERSED.
ORFINGER and COBB, JJ., concur.
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Citator
Cited By (35 total)
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Mize v. Mize, 621 So. 2d 417 (Fla. 1993)…and control of both parents subsequent to a divorce serves the best interests of the children."). . See, e.g., Crippen v. Crippen, 508 So. 2d 1339 (Fla. 4th DCA1987); Culpepper v. Culpepper, 408 So. 2d 782 (Fla. 2d DCA1982); Stricklin v. Stricklin, 383 So. 2d 1183 (Fla. 5th DCA1980). . See, e.g., Ferguson v. Baisley, 593 So. 2d 319, 320 (Fla. 4th DCA1992) (Anstead, J., dissenting) (‘‘[T]he legal standards to be applied by a trial court asked to allow a move, are in a state of confusion.’’); Mast v. Reed, 578…
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Zediker v. Zediker, 444 So. 2d 1034 (Fla. 1st DCA 1984)…Vanden Bosch, 433 So. 2d 1251 (Fla. 3d DCA 1983). See generally Iljazi v. Iljazi, 436 So. 2d 326 (Fla. 2d DCA 1983); Stearns v. Szikney, 386 So. 2d 592 (Fla. 5th DCA 1980); Berlin v. Berlin, 386 So. 2d 577 (Fla. 3d DCA 1980); Stricklin v. Stricklin, 383 So. 2d 1183 (Fla. 5th DCA 1980); Teta v. Teta, 297 So. 2d 642 (Fla. 1st DCA 1974); Wilson v. Condra, 255 So. 2d 702 (Fla. 1st DCA 1971); Bennett v. Bennett, 73 So. 2d 274 (Fla.1954). In satisfying this burden, it is essential that the movant rely only on change…
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Karie Lynn Gibbs v. Gibbs, 686 So. 2d 639 (Fla. 2d DCA 1996)…obinson, the court noted that there was no evidence that the mother was “unfit.” The court also emphasized that the preference of a child, although a factor to be considered, should not control the disposition of custody. In Stricklin v. Stricklin, 383 So. 2d 1183 (Fla. 5th DCA 1980), the newly created Fifth District used somewhat different language than the earlier Second District cases and expressly rejected any requirement that the custodial parent be found “unfit”: To warrant modification of a custody aw…
Previewing 3 of 35 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ritsi v. Ritsi, 160 So. 2d 159 (Fla. 3d DCA 1964)
- Sanders v. Peggy J. Sanders (Kirkland), 376 So. 2d 880 (Fla. 1st DCA 1979)
- Avery v. Avery, 314 So. 2d 198 (Fla. 1st DCA 1975)
- Robinson v. Robinson, 333 So. 2d 526 (Fla. 2d DCA 1976)
- Levy v. Lancelot Assocs., 312 So. 2d 215 (Fla. 3d DCA 1975)
- Jayne v. Dennison, 284 So. 2d 237 (Fla. 2d DCA 1973)