DONALD L. BURLEY, APPELLANT,
v.
MARGARET J. BURLEY, APPELLEE
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A child's change in preference alone is insufficient to modify custody, but may be considered.
[1] A party seeking modification of a child custody order must first overcome the res judicata effect of the existing order by demonstrating a material change in circumstance…
[2] Following a material change in circumstances, a party seeking modification of child custody must also prove that the proposed change is in the best interests of the minor…
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Join FLexlaw to unlock all legal intelligenceParties' dissolution judgment allowed children to choose residence, leading to custody and support changes. Father petitioned for modification, which …
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HERSEY, Judge.
The father appeals from a non-final order denying his petition for modification of child custody. We reverse.
Custody and child support issues related to a dissolution proceeding between the present parties were resolved by an agreement, later incorporated in a supplemental final judgment, which provided, inter alia, that each of the minor children “shall, at all times, have the right to select the parent with whom said child desires to reside.” Exercising this right, one or more of the children effected changes in residence which, in turn, affected custody and support. As a result of these changes the father petitioned unsuccessfully for modifi cation, resulting in these appellate proceedings.
The rules which govern the issues thus presented are elementary and straightforward. See Elkins v. Vanden, 433 So. 2d 1251 (Fla. 3d DCA 1983). One who seeks a change in the custody of minor children shoulders a heavy burden. First he must overcome the res judicata effect of the existing order determining custody by showing a material change in circumstances and then he must show that the welfare of the minor child would be best served by the proposed change. In passing, we note for the guidance of the parties, their counsel and the trial court that a change in preference by one or more of the minor children as to which parent shall have custody is insufficient, standing alone, either to constitute a sufficient change of circumstances or to support a determination that a change is in the best interest of the child. It may be considered on both issues, however, and shall be given such weight as the trial court determines appropriate.
The point here is that no evidentiary hearing took place and thus no basis has been established for a finding on the issue of change of circumstances or the issue of the best interests of the child. We reverse and remand with instructions to the court to provide an opportunity for such a hearing upon motion by either party. The order appealed is reversed.
REVERSED and REMANDED with INSTRUCTIONS.
BERANEK and DELL, JJ., concur.
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McINTYRE v. Nance Ruth McINTYRE, 452 So. 2d 14 (Fla. 1st DCA 1984)…ctors, the first and second have been deemed insufficient. 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…
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Vazquez v. Vazquez, 626 So. 2d 318 (Fla. 5th DCA 1993)…ents will have the opportunity for a full hearing where their witnesses and the parties themselves are available to offer testimony. If there is no full hearing, the appellate court must reverse the decision of the trial court. See Burley v. Burley, 438 So. 2d 1055 (Fla. 4th DCA 1983). In the case sub judice, the appellant was not given the opportunity to testify or to present a witness who was present to testify on her behalf. She was deprived of her right to participate in the hearing. This was error. See Be…
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Saenz v. Saenz, 602 So. 2d 973 (Fla. 3d DCA 1992)…ne of res judicata and, as such, concerns only final judgments— does not apply. Lee v. Meeks, 592 So. 2d 282 (Fla. 1st DCA 1991); Malunney v. Pearlstein, 539 So. 2d 493 (Fla. 2d DCA 1989), review denied, 547 So. 2d 1210 (Fla.1989); Burley v. Burley, 438 So. 2d 1055 (Fla. 4th DCA 1983). Instead, the applicable doctrine is that rulings on temporary relief do not affect later orders on the same issue, which must be dealt with independently on the basis of the record which is then presented. Pearson v. Caudle, 593…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Elkins v. Bosch, 433 So. 2d 1251 (Fla. 3d DCA 1983)