IN THE INTEREST OF H.B., M.B., J.B., J.B., D.B., P.B. AND R.B., MINOR CHILDREN
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.
A Florida appellate court reversed a trial court's modification of custody, holding that child abuse by a mother's former boyfriend cannot alone justify a change in custody when the mother was found blameless and the abuse poses no future risk.
A trial court cannot modify custody solely because abuse occurred through no fault of the custodial parent. Child abuse by a third party, without more showing that the custodial parent caused the problem or that continued custody would be detrimental to the children, cannot justify a modification of custody.
[1] A change in custody cannot be justified solely by the occurrence of child abuse if the custodial parent was not at fault and there is no future risk of abuse.
[2] A custodial parent's lack of knowledge or culpability regarding child abuse inflicted by a third party does not, in itself, constitute a substantial change in circumstanc…
Previewing 2 of 3 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“Child abuse is a terrible thing, but when a terrible thing happens to a child, through no fault of the custodial parent, it cannot, without more, justify modification of custody.”
States the core legal principle that abuse by a third party, absent custodial parent fault, cannot alone support custody modification.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceIn January 1991, HRS received a report of suspected child abuse involving seven children. One child was sexually abused by the mother's former boyfrie…
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 Change Of Custody cases and more on FLexlaw
KLEIN, Judge.
The trial court granted a change in custody solely because the mother’s former boyfriend abused one of her children. Since the court made a factual finding that the mother was in no way to blame for the child abuse and that there was no possibility it would happen in the future, we reverse.
In January of 1991 HRS received a report of suspected child abuse, and in February all seven of this mother’s children were temporarily removed from her custody. The three children of this father, which included the one alleged to have been sexually abused, were placed in his custody, and the other four were placed in interim foster care. The children in foster care were returned to the 'mother within a few months. In the meantime HRS petitioned to have the children adjudicated dependent because of the child abuse, and the father filed a petition for modification seeking permanent custody of his three children, who were then temporarily with him. The dependency and modification cases were tried together and there was evidence that one of the children had been abused by the mother’s former boyfriend.
The court denied the petition for dependency, finding that although one of the children had been abused by the former boy- Mend, there was no evidence that the mother knew of it or permitted it to occur, and that there was no possibility that it would occur in the future. The court granted the father’s petition for change of custody of the three children, however, based on the same findings of fact in the order denying the petition for dependency, but concluding that “the fact that the abuse occurred constitutes a substantial change of circumstances warranting a modification of custody.”
Child abuse is a terrible thing, but when a terrible thing happens to a child, through no fault of the custodial parent, it cannot, without more, justify modification of custody. Shelley v. Shelley, 480 So. 2d 166 (Fla. 1st DCA 1985), rev. denied, 491 So. 2d 280 (Fla.1986) (reversing a modification of custody because there was no showing that the mother had caused the child’s emotional problems which were the basis of the modification); Walden v. Walden, 483 So. 2d 87 (Fla. 1st DCA 1986) (reversing a modification of custody because the child was insulated from knowledge of the mother’s alleged sordid misconduct); and In the Interest of J.J., 570 So. 2d 1078 (Fla. 1st DCA 1990) (reversing a finding of dependency because of sexual abuse by the mother’s boyMend where the mother was in no way responsible).
Undoubtedly the trial judge was heavily influenced by the fact that the children “thrived” in the father’s care since he was given temporary custody following the allegations of child abuse. While that may well be the case, there has been no finding that the mother is any less fit a parent than she was at the time she got custody in 1990, or that her continued custody would have a detrimental effect on the children. Elkins v. Vanden Bosch, 433 So. 2d 1251 (Fla. 3d DCA 1983).
Reversed.
ANSTEAD and GUNTHER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Bartolotta v. Bartolotta, 687 So. 2d 1385 (Fla. 4th DCA 1997)…ied the original custody order of the parties’ three children, changing custody from Appellant, Kelly Bartolotta (“Mother”), to Appellee, Joseph Bartolotta (“Father”). On appeal, we reversed, ordering that custody remain with the Mother. In re H.B., 627 So. 2d 1331 (Fla. 4th DCA 1993). Because the children were not returned to the Mother within the month following our decision, the Mother filed a motion to enforce our mandate. A few days later, the Father in turn renewed his petition for modification and reque…1 / 2
-
Bartolotta v. Bartolotta, 703 So. 2d 1229 (Fla. 4th DCA 1998)…the third appearance of this case involving the custody of children. The reader should refer to our previous opinions in Bartolotta v. Bartolotta, 687 So. 2d 1385 (Fla. 4th DCA), rev. denied, 697 So. 2d 509 (Fla. 1997), and In the Interest of H.B., 627 So. 2d 1331 (Fla. 4th DCA 1993). As in those two previous cases, once again we must reverse the trial court. The facts setting the stage for the present appeal are unusual to say the least. The parties were divorced in 1989. In an agreement approved by the fin…
Authorities Cited
- Elkins v. Bosch, 433 So. 2d 1251 (Fla. 3d DCA 1983)
- Valinda Lee Shelley v. Shelley, 480 So. 2d 166 (Fla. 1st DCA 1985)
- Walden v. Walden, 483 So. 2d 87 (Fla. 1st DCA 1986)
- In the Interest of J.J. and J.J., 570 So. 2d 1078 (Fla. 1st DCA 1990)