IN THE INTEREST OF B.B., H.B., A.W., AND J.W., CHILDREN
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A finding of detriment to the children, as defined by law, requires awarding custody to third parties, overriding the natural parent's rights, and does not require balancing the severity of the detriment against those rights.
[1] In child custody disputes between a natural parent and a third party, custody should be denied to the natural parent only when such an award will be detrimental to the we…
[2] In the context of child custody disputes, "detriment" means circumstances which produce or are likely to produce mental, physical, or emotional harm of a lasting nature.
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Join FLexlaw to unlock all legal intelligenceIn a child custody dispute between a mother and paternal grandparents, the trial court found the children would suffer detriment in the mother's care …
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PATTERSON, Judge.
This is the second appeal in this combined child custody and dependency action, which has pitted the natural mother of minor children against the children’s paternal grandparents. In the first appeal, we reversed the award of custody to the mother and remanded for further consideration and findings, because it was unclear whether the trial judge found the children to be in a state of detriment. 535 So. 2d 686.
On remand, the trial court found that the children would suffer detriment from being in the custody of their mother, but went on to balance the children’s detriment against the mother’s natural right to enjoy their custody. The trial court then confirmed its original findings and award. In this appeal from that order, we conclude that the trial court’s findings of detriment required an award of custody to the grandparents and reverse.
In the first order, dated December 2, 1987, the lower court found that the natural mother is “borderline retarded”;, that the children live in squalid conditions and “huddle together in shacks with broken windows and doors”; that the family subsists primarily on public assistance and aid from a religious organization; and that one of the children has, and another may have, been the victim of sexual abuse. The trial judge, confronted with conflicting testimony as to the parenting abilities of the mother and a recommendation of the Department of Health and Rehabilitative Services that the children remain in her care, reluctantly followed that recommendation. He denied custody to the grandparents in favor of awarding it to the mother. In doing so, the trial court relied upon our supreme court’s decision in In re D.A. McW., 460 So. 2d 368 (Fla.1984). There the court set forth a standard for determining custody disputes between parents and third parties. It said:
When a custody dispute is between two parents, where both are fit and have equal rights to custody, the test involves only the determination of the best interests of the child. When the custody dispute is between a natural parent and a third party, however, the test must include consideraion of the right of a natural parent “to enjoy the custody, fellowship and companionship of his offspring. ... This is a rule older than the common law itself.” State ex rel. Sparks v. Reeves, 97 So. 2d 18, 20 (Fla.1957). In Reeves we held that in such a circumstnace [sic], custody should be denied to the natural parent only when such an award will, in fact, be detrimental to the welfare of the child.
460 So. 2d at 370. Thus, the parent’s inherent right to the custody of his or her children requires the court to apply a higher standard in deciding whether to award custody to a third party.
In this second appeal, we conclude that under the D.A. McW. standard, a finding of detriment alone provides a basis for the award of custody to third parties in derogation of the natural parent’s inherent rights. There is no precise definition of “detriment” in this sense. Although “detriment” is often used interchangeably with words such as “disservice,” “disadvantage,” “annoyance,” and “nuisance,” those factors do not meet the threshold of harm contemplated in cases of this nature. It is understandable that the trial judge had difficulty in determining the legal consequences of the facts and circumstances he observed.
In the context of child custody disputes, we construe “detriment” to mean circumstances which produce or are likely to produce mental, physical, or emotional harm of a lasting nature. See Filter v. Bennett, 554 So. 2d 1184 (Fla. 2d DCA 1990) (“detriment” means more than the normal trauma caused by uprooting a child from familiar surroundings; it contemplates a longer term adverse effect transcending a normal adjustment period). Detriment, like unfitness to be a parent, does not come in degrees of severity. It is a conclusion of law that may be based upon facts barely crossing the threshold, or circumstances of catastrophic proportion. It either exists or it does not. Once it is established, it is not proper to attempt to balance the severity of the underlying facts with the rights of the natural parent because those rights have been overcome and are no longer a consideration.
Applying this definition to the factual findings recited in the first order and confirmed in the order on appeal, we hold that as of that date these children suffered detriment requiring an award of their custody to the grandparents, and therefore reverse the order of March 15, 1989, which con firmed custody in the mother. Because the factual findings supporting our conclusion were made well over two years ago, we remand for further evidentiary proceedings to determine whether a finding of detriment is appropriate under the children’s current circumstances.
REVERSED and REMANDED.
PARKER, A.C.J., and ALTENBERND, J., concur.
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Murphy v. Markham-Crawford, 665 So. 2d 1093 (Fla. 1st DCA 1995)…tment period in sueh cases.” Filter, 554 So,2d at 1185. Accord Marriage of Matzen, 600 So. 2d at 490 (“ ‘[detriment’ refers to circumstances that produce or are likely to produce lasting mental, physical or emotional harm”); In the Interest of B.B., 559 So. 2d 1277, 1278 (Fla. 2d DCA 1990) (same). The only competent evidence of detriment to appellant’s child should the two be reunited was that presented in the form of opinions, by a mental health counselor and a clinical psychologist. Both testified that the…
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In re the Marriage OF Carter Robert Matzen & Judy C. Matzen, 600 So. 2d 487 (Fla. 1st DCA 1992)…matters.” See 97 So. 2d at 21. Instead, the focus is necessarily on the parent. Detriment, or unfitness to be a custodial parent, cannot be measured in degrees. It either is present or it is not, See In the Interest of B.B., H.B., A. W., and J.W., 559 So. 2d 1277, 1278 (Fla. 2d DCA 1990). “Detriment” refers to circumstances that produce or are likely to produce lasting mental, physical or emotional harm. Id. In Filter v. Bennett, 554 So. 2d 1184 (Fla. 2d DCA 1989), the appellate court described detriment as…
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Bateman v. Johnson, 818 So. 2d 569 (Fla. 2d DCA 2002)…ord, 665 So. 2d 1093 (Fla. 1st DCA 1995). To deny a parent custody of his child based on a finding of detriment, the change in custody would have to be “likely to produce mental, physical, or emotional harm of a lasting nature.” In Interest of B.B., 559 So. 2d 1277, 1278 (Fla. 2d DCA 1990). The record does not support a finding of detriment. During the hearing, the trial court heard testimony from a licensed mental health counselor and a clinical psychologist. Both therapists testified that Morgan would have…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State ex rel. Charles B. Sparks v. Mrs. A. E. Reeves, 97 So. 2d 18 (Fla. 1957)
- In re Guardianship OF D.A.McW. v. McWHITE, 460 So. 2d 368 (Fla. 1984)
- Tyre v. Dep't OF Corr., 554 So. 2d 1184 (Fla. 1st DCA 1989)
- In the Interest of B.B. v. M.W., 535 So. 2d 686 (Fla. 2d DCA 1988)