SHANNON D. MCGREGOR, APPELLANT,
v.
ROBERT B. MCGREGOR, APPELLEE
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In this marriage dissolution appeal, the court reversed the trial court's modification of custody for the younger son while affirming the modification for the older son. The court held that the father failed to carry the heavy burden required to change custody of nine-year-old Shawn from the mother, though the evidence supported changing custody of thirteen-year-old Mark to the father.
The court held that while the father carried his burden as to Mark (the thirteen-year-old), he failed to meet the extraordinary burden required to change custody of Shawn (the nine-year-old) from the mother. The modification regarding Mark's custody was affirmed, but the modification regarding Shawn's custody was reversed.
[1] A party seeking a postdissolution change of custody bears an extraordinary burden to prove a material and substantial change of circumstances detrimental to the children…
[2] The mere fact that parents cannot communicate or get along does not constitute a material change in circumstances sufficient to warrant a modification of child custody.
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Join FLexlaw to unlock all legal intelligence“A litigant who seeks to change a custody order carries an extraordinary burden.”
Establishes the legal standard for custody modifications—a heavy burden of proof required of the party seeking change
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Join FLexlaw to unlock all legal intelligenceShannon D. McGregor (mother) and Robert B. McGregor (father) were parties to a marriage dissolution case involving two minor sons: Shawn (age nine) an…
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DAUKSCH, Judge.
This is an appeal from an order modifying a judgment in a marriage dissolution case. The primary issue, one which has caused this court grave concern in this case, is the changing of custody of the two minor sons from the mother to the father. We have examined this record quite carefully and must determine the father failed to carry the heavy burden placed upon him to permit the court to change the custody of nine-year-old Shawn from the mother to the father. We are quite aware it is usually best for brothers to stay together during their formative years, but we agree with the trial judge’s determination that the evidence supports a change of custody for thirteen-year-old Mark. The trial judge apparently found and the evidence reveals that Mark needs to live with his father during his difficult teenage years and his father is very capable of providing the boy’s needs. However, there is no evidence Shawn has the special needs which can best be provided by his father and there is ample evidence his mother is quite capable of continuing to be the fit parent the trial court first determined she was. A litigant who seeks to change a custody order carries an extraordinary burden. See Stricklin v. Stricklin, 383 So. 2d 1183 (Fla. 5th DCA 1980). We have determined that burden was not carried with regard to the change of custody of Shawn.
The order of modification, in so much as it changes the custody of Shawn, is reversed and this cause is remanded for the trial court to revisit the alimony and support matters which may need adjustment due to this decision. In all other respects the order is affirmed.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
COBB, J., concurs.
FRANK D. UPCHURCH, Jr., J., dissents with opinion.
FRANK D. UPCHURCH, Jr., Judge,
dissenting:
I respectfully dissent from the portion of the majority opinion which reverses the order of modification for the reasons stated in Kershner v. Crocker, 400 So. 2d 126 (Fla. 5th DCA 1981).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (23 total)
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Zediker v. Zediker, 444 So. 2d 1034 (Fla. 1st DCA 1984)…nted to an abuse of the trial court’s discretion. We agree. Unlike proceedings to modify awards of child support or alimony, the non-custodial parent seeking to modify a prior award of custody “carries an extraordinary burden." McGregor v. McGregor, 418 So. 2d 1073, 1074 (Fla. 5th DCA 1982) (emphasis supplied). Accord Elkins v. 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. Be…
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Karie Lynn Gibbs v. Gibbs, 686 So. 2d 639 (Fla. 2d DCA 1996)…welfare of the child will be promoted by the change in custody. The order changing custody need not include a finding that the prior custodial parent is unfit. Id. at 1184 (citation omitted). The Stricklin test was followed in McGregor v. McGregor, 418 So. 2d 1073 (Fla. 5th DCA 1982), in what appears to be the first case describing the test as requiring an “extraordinary burden.” In evaluating these earlier cases on the requirement of detriment, it is useful to remember that under the “tender years” doctrine…
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Schweinberg v. Click, 627 So. 2d 548 (Fla. 5th DCA 1993)…must rely only on changes occurring after the original final judgment of dissolution is entered since that judgment is res judicata as to all other matters involved in the case at that time. Zediker, 444 So. 2d at 1036 (citing McGregor v. McGregor, 418 So. 2d 1073, 1074 (Fla. 5th DCA 1982)). The evidence presented in this ease must establish changes which have come about in the lives of the children during the six years they lived "with their father. Nothing that occurred prior to the dissolution ⅛ relevant.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Stricklin v. Stricklin, 383 So. 2d 1183 (Fla. 5th DCA 1980)
- In re the Marriage of Betty J. Kershner v. Crocker, 400 So. 2d 126 (Fla. 5th DCA 1981)