ROBERT J. BRUSH, APPELLANT,
v.
DULCE S. BRUSH N/K/A DULCE SABAT, APPELLEE
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The court reversed a summary judgment denying a husband's petition to modify child custody, holding that genuine issues of material fact regarding substantial changes in circumstances and the child's best interests precluded summary disposition.
Summary judgment is inappropriate in child custody modification cases when genuine issues of material fact exist regarding substantial changes in circumstances and the child's best interests.
[1] Summary judgment should be granted sparingly in child custody modification proceedings due to the inherent factual disputes involved.
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Join FLexlaw to unlock all legal intelligence“To warrant the modification of a child custody award, there must be evidence that there is a substantial change in the condition of the parties and that the best interest of the child would be promoted by the change in custody.”
Statement of the legal standard for custody modification
A husband petitioned to modify a child custody award previously granted to the mother. The trial court granted summary judgment against the husband's …
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PER CURIAM.
The husband appeals from a final summary judgment denying his petition for modification of custody.
To warrant the modification of a child custody award, there must be evidence that there is a substantial change in the condition of the parties and that the best interest of the child would be promoted by the change in custody. Adams v. Adams, 385 So. 2d 688 (Fla. 3d DCA 1980); Sanders v. Sanders, 376 So. 2d 880 (Fla. 1st DCA 1979), cert. denied, 388 So. 2d 1117 (Fla. 1980). Factors to consider in making this determination include (but are not limited to) the stability of the living environment, Rosenberg v. Rosenberg, 365 So. 2d 185 (Fla. 3d DCA), cert. denied, 376 So. 2d 75 (Fla.1979), cohabitation of the custodial parent, Smothers v. Smothers, 281 So. 2d 359 (Fla. 1973); Young v. Young, 305 So. 2d 92 (Fla. 1st DCA 1974), and the preference of the child, Taylor v. Schilt, 292 So. 2d 47 (Fla. 2d DCA 1974); Goldstein v. Goldstein, 264 So. 2d 49 (Fla. 3d DCA 1972). Because we find that there are genuine issues of material fact with respect to these considerations, the summary judgment must be reversed.
We caution that summary judgments should be granted sparingly upon petitions for modification of custody because of the inherent factual disputes prevalent in such proceedings.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Adams v. Adams, 385 So. 2d 688 (Fla. 3d DCA 1980)
- Sanders v. Peggy J. Sanders (Kirkland), 376 So. 2d 880 (Fla. 1st DCA 1979)
- Burton J. Goldstein v. Goldstein, 264 So. 2d 49 (Fla. 3d DCA 1972)
- Smothers v. Smothers, 281 So. 2d 359 (Fla. 1973)
- Young v. Young, 305 So. 2d 92 (Fla. 1st DCA 1974)
- Brown v. State, 292 So. 2d 47 (Fla. 1st DCA 1974)
- Taylor v. Schilt, 292 So. 2d 47 (Fla. 2d DCA 1974)
- Rosenberg v. Rosenberg, 365 So. 2d 185 (Fla. 3d DCA 1978)