JAMES M. USHER, APPELLANT,
v.
LORI JAN USHER, APPELLEE
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Father appealed a trial court's order transferring temporary custody of two minor children to mother. The appellate court reversed, finding mother failed to demonstrate a substantial change of circumstances and that evidence weighed against the transfer, particularly given mother's ongoing alcohol abuse issues.
The trial court abused its discretion in transferring custody because there was insufficient evidence to support the transfer and a failure to show a substantial change of circumstances. The factors under section 61.13(3) were not equal between the parents, and the evidence weighed against awarding custody to mother given her continuing alcohol abuse.
[1] A party seeking to transfer temporary custody of minor children must demonstrate a substantial change of circumstances to justify the transfer.
[2] The "tender years doctrine," which favors the mother in custody determinations for young children, only applies after the court finds that both parents equally meet the s…
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Join FLexlaw to unlock all legal intelligence“the mother failed to carry her burden of showing a substantial change of circumstances to justify the transfer”
Establishes the legal standard required for modifying custody arrangements
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Join FLexlaw to unlock all legal intelligenceJames and Lori Usher were parties to a custody dispute over two minor children. The trial court issued an order on February 27, 1990, transferring tem…
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RYDER, Judge.
James M. Usher (father) challenges the nonfinal order rendered February 27, 1990, which transferred temporary custody of the parties’ two minor children to Lori Jan Usher (mother). We reverse because the mother failed to carry her burden of showing a substantial change of circumstances to justify the transfer. See Agudo v. Agudo, 411 So. 2d 249 (Fla. 3d DCA), review denied, 418 So. 2d 1278 (Fla.1982).
Section 61.13(3), Florida Statutes (1989), provides the court with guidelines for determining the best interests of the children in matters regarding custody. Additionally, section 61.13(l)(b)l, Florida Statutes (1989), instructs the court to give the father the same consideration as the moth er when determining custody. See Stamm v. Stamm, 489 So. 2d 851 (Fla. 5th DCA 1986). While the mother’s argument regarding the “tender years doctrine” has merit, it is not without exception. The doctrine directs the trial court to give prime consideration to the mother when determining custody of young children. However, the doctrine only applies after the trial court finds that both parents equally meet the criteria of section 61.13(3). See Dinkel v. Dinkel, 322 So. 2d 22, 24 (Fla.1975).
In the instant case, not only was there a lack of evidence to justify the transfer, but also, the evidence presented weighed against awarding temporary custody to the mother. Both parents do not meet the criteria of section 61.13(3); the factors are not equal. Both expert witnesses testified that it was not in the best interests of the children to transfer custody. The record revealed that the mother continues to suffer from alcohol abuse. In fact, the order directs the mother to continue treatment for her alcohol abuse problem. It should be noted that initially the mother was restricted in her visitation rights because her abuse of alcohol was likely to lead to child abuse. None of the evidence presented showed that the father was in any way unfit to have custody.
We hold that the trial court abused its discretion in transferring custody of the two minor children to the mother because there was insufficient evidence to support the transfer. See Ross v. Ross, 321 So. 2d 443 (Fla. 3d DCA 1975). Therefore, we reverse and remand the cause to the trial court for entry of an order restoring custody to the father. We also direct the trial court to hold proceedings to determine the appropriate visitation rights that should be accorded to the mother. Reversed and remanded with instructions.
SCHOONOVER, C.J., and SCHEB, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Ketola v. Ketola, 636 So. 2d 850 (Fla. 1st DCA 1994)…ng to consider and apply the “tender years” doctrine when performing the analysis required by section 61.13, Florida Statutes (1993), and reaching its decision to name the father as primary residential parent. She relies primarily on Usher v. Usher, 568 So. 2d 471 (Fla. 2d DCA 1990), Dinkel v. Dinkel, 322 So. 2d 22 (Fla.1975), and DeCamp v. Hein, 541 So. 2d 708 (Fla. 4th DCA), rev. denied, 551 So. 2d 461 (Fla.1989). We reject this argument because certain amendments now incorporated in subsection 61.13(2) hav…
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Kuutti v. Tommi L. Kuutti, 645 So. 2d 80 (Fla. 4th DCA 1994)…al evaluation of the factors listed in subsection 61.13(3). Accordingly, the courts have no business perpetuating a court-made doctrine of preference that is patently inconsistent with this policy. To the extent that the decisions in Usher v. Usher [568 So. 2d 471] [(1990)] and DeCamp v. Hein may be inconsistent with [*83] our construction and application of subsection 61.13(2), we decline to follow them. 636 So. 2d at 852. While we recognize that the result in DeCamp can stand on its own merits independent…1 / 2
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Johnson v. Adair, 884 So. 2d 1169 (Fla. 2d DCA 2004)…s. The trial court may receive additional evidence if necessary. Reversed and remanded. CASANUEVA and VILLANTI, JJ., concur. . In Ketola, the First District noted that its decision may be inconsistent with this court's decision in Usher v. Usher, 568 So. 2d 471 (Fla. 2d DCA 1990), and later, the Fourth District acknowledged that its opinion in Kuutti possibly conflicted with Usher. See Kuutti, 645 So. 2d at 83; Ketola, 636 So. 2d at 852. Because the discussion in Usher of the “tender years” doctrine was di…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dinkel v. Dinkel, 322 So. 2d 22 (Fla. 1975)
- Nury Agudo v. Marcelo Agudo, 411 So. 2d 249 (Fla. 3d DCA 1982)
- Ross v. Jere Sandy Ross, 321 So. 2d 443 (Fla. 3d DCA 1975)
- Stamm v. Marjorie Faith (Biggs) Stamm, 489 So. 2d 851 (Fla. 5th DCA 1986)