JANICE L. DAUGHARTY, APPELLANT,
v.
JAMES E. DAUGHARTY AND BARBARA DAUGHARTY, APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Janice Daugharty appealed a custody award granting custody of her two children to the paternal grandmother rather than to either parent. The appellate court vacated and remanded because the trial court applied the wrong legal standard—the "best interests" standard used between two fit parents—rather than the "Cherry standard" requiring a showing that parents are unfit or that custody with them would be detrimental to the children.
The court held that when a custody dispute involves a non-parent, the correct legal standard is not the "best interests" standard but rather the "Cherry standard," which requires a showing that the parents are unfit or that custody with them would be detrimental to the children's welfare. The trial court's judgment was vacated and remanded because it failed to apply this proper standard.
[1] In a custody dispute between parents and a third party, the parents' rights are paramount unless they are shown to be unfit or that custody with them would be detrimental…
[2] A trial court must apply the correct legal standard when awarding custody to a non-parent, which requires a showing of parental unfitness or detriment to the child.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“In the instant case, where the custody dispute is between the parents and a third person, the rights of the parents are paramount unless there is a showing that the parents are unfit or that, for some substantial reason, custody in either or both of the parents would be detrimental to the child's welfare.”
Establishes the correct legal standard (Cherry standard) for custody disputes involving non-parents, requiring unfitness or substantial detriment rather than merely "best interests."
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe trial court awarded sole care, custody, and control of two minor children to their paternal grandmother, Barbara Daugharty, with liberal visitatio…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Detriment To The Child cases and more on FLexlaw
PETERSON, Judge.
Janice L. Daugharty appeals that portion of a final judgment that places her tv/o children in the custody of the children’s paternal grandmother, Barbara Daugharty. We vacate a portion of the final judgment and remand.
The trial court made a specific finding in paragraph two of its final judgment that it was in the best interests of the minor children that they be placed in the custody of the paternal grandmother and that the latter was a fit and proper custodian. The court then ordered that the paternal grandmother would have the sole care, custody, and control of the children subject to liberal visitation privileges by the natural mother and father. The concern we have in this case is whether the proper legal standard was applied by the trial court to arrive at the decision to award custody to a non-parent. The stated finding that the best interests of the children would be served by awarding custody to the grandmother implies that the “best interest” standard was applied. The best interest standard is applied in a dispute between two parents where both are fit and have equal rights to custody. Guardianship of D.A. McW., 460 So. 2d 368 (Fla.1984).
In the instant case, where the custody dispute is between the parents and a third person, the rights of the parents are paramount unless there is a showing that the parents are unfit or that, for some substantial reason, custody in either or both of the parents would be detrimental to the child’s welfare. Cherry v. Cherry, 508 So. 2d 782 (Fla. 5th DCA 1987); Pape v. Pape, 444 So. 2d 1058 (Fla. 1st DCA 1984); Johnson v. Richardson, 434 So. 2d 972 (Fla. 5th DCA 1983); Besade v. Besade, 312 So. 2d 484 (Fla. 3d DCA 1975).
While the correct standard may have been applied in the instant case, nothing in the record allows us to confirm it.
We vacate paragraphs two and three of the judgment indicating that the paternal grandmother shall have the sole care, custody, and control of the minor children and, that the parents shall have liberal visitation privileges. We remand this cause to the trial court and direct that he apply the Cherry standards to the facts previously presented and supplement the judgment to reflect his findings. In the alternative and upon a proper motion made by a party to this appeal within ten days from the date of this mandate, the trial court may, in its discretion, conduct a supplementary hearing to include presentation of additional evidence germane to application of the correct standard. We recognize that the trial court may reach the same result as in the previous judgment, but only by this remand can we be satisfied that no confusion exists with respect to the application of the correct standard. The minor children shall remain in the custody of the paternal grandmother while the trial court considers this matter. The remaining portions of the judgment are affirmed.
AFFIRMED in part; VACATED in part; and REMANDED.
DAUKSCH and GOSHORN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
In re the Marriage OF Carter Robert Matzen & Judy C. Matzen, 600 So. 2d 487 (Fla. 1st DCA 1992)…Cherry, 508 So. 2d 782 (Fla. 5th DCA 1987); Pape v. Pape, 444 So. 2d 1058, 1060 (Fla. 1st DCA 1984); Kersey v. State, 124 So. 2d 726, 731 (Fla. 1st DCA 1960). Absent such a finding, the right of a natural parent is paramount. Daugharty v. Daugharty, 571 So. 2d 85 (Fla. 5th DCA 1990). In fact, the order appealed contains no specific finding of unfitness on the part of the father, nor does it provide supporting evidence sufficient to demonstrate that custody and primary residence with appellant would be detri…
-
Hammond v. Howard, 828 So. 2d 476 (Fla. 5th DCA 2002)…ther. See In re Guardianship of D.A. McW., 460 So. 2d 368, 370 (Fla. [*478] 1984) (affirming that the “best interests” test is not the proper legal standard for determining custody between a natural parent and a third party); Daugharty v. Daugharty, 571 So. 2d 85 (Fla. 5th DCA 1990). Rather, this court has consistently applied a rule of parental preference which provides that “where the custody dispute is between the parents and a third person, the rights of the parents are paramount unless there is a showi…
-
Morris v. Morris, 255 So. 3d 908 (Fla. 1st DCA 2018)…unt unless there is a showing . . . that, for some substantial reason, custody in either or both of the parents would be detrimental to the child’s welfare.” Hammond v. Howard, 828 So. 2d 476, 478 (Fla. 5th DCA 2002) (quoting Daugharty v. Daugharty, 571 So. 2d 85, 86 (Fla. 5th DCA 1990)). “‘[D]etriment refers to circumstances that produce or are likely to produce lasting mental, physical or emotional harm.’” Murphy v. Markham-Crawford, 665 So. 2d 1093, 1094 (Fla. 1st DCA 1995) (quoting In re Marriage of Matz…
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
- In re Guardianship OF D.A.McW. v. McWHITE, 460 So. 2d 368 (Fla. 1984)
- Pape v. Pape, 444 So. 2d 1058 (Fla. 1st DCA 1984)
- Besade v. Besade, 312 So. 2d 484 (Fla. 3d DCA 1975)
- Hattie M. Johnson v. Richardson, 434 So. 2d 972 (Fla. 5th DCA 1983)
- Cherry v. Cherry, 508 So. 2d 782 (Fla. 5th DCA 1987)