LINDA MARIE VITOVIC SMOAK, APPELLANT,
v.
RONALD ALBERT SMOAK, JR., APPELLEE
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The Florida District Court of Appeal reversed a trial court's order modifying child custody from the mother to the father, holding that the father failed to meet his "extraordinary burden" of proving a substantial and material change in circumstances. The court rejected relying on time spent with the child when that time resulted from the mother's voluntary agreement to liberal visitation.
The appellate court reversed the modification order, holding that the father failed to carry his "extraordinary burden" under the two-prong test for custody modification. The court determined that the factors cited by the trial court neither separately nor cumulatively evidenced a substantial and material change warranting modification, and that relying on visitation time the mother voluntarily agreed to would improperly discourage parental cooperation.
[1] A party seeking modification of a child custody order bears an extraordinary burden to prove a substantial and material change in circumstances and that the change in cus…
[2] A trial court's discretion in modifying child custody is more limited than its discretion in entering the original custody decree.
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Join FLexlaw to unlock all legal intelligence“In seeking to modify the original decree awarding custody, the non-custodial parent carries an "extraordinary burden" to satisfy a two-prong evidentiary test: to prove a substantial and material change in circumstances and then show that the best interest of the child will be promoted by a change in custody.”
Establishes the high legal standard required for custody modification and the burden on the non-custodial parent
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Join FLexlaw to unlock all legal intelligenceThe mother was awarded primary residential custody in the original dissolution decree. After the father's military discharge, the mother agreed to ext…
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PER CURIAM.
We review an appeal from an order modifying the primary residence of a minor child. Appellant raises three issues: (1) whether the trial court erred in denying a motion for continuance; (2) whether the trial court erred in allowing testimony regarding facts that existed before the marriage dissolution; and (3) whether the trial court erred in determining that a substantial, material change in circumstances supported a change in the primary residence of the minor child. We affirm the first two issues without discussion, but we reverse as to the third issue.
In seeking to modify the original decree awarding custody, the non-custodial parent carries an “extraordinary burden” to satisfy a two-prong evidentiary test: to prove a substantial and material change in circumstances and then show that the best interest of the child will be promoted by a change in custody. Zediker v. Zediker, 444 So. 2d 1034 (Fla. 1st DCA 1984). A trial court considering a petition for modification of custody does not have the same degree of discretion it has when entering the original decree. Id.
In the instant case, the mother was awarded primary residential custody of the minor child in the final judgment of dissolution. Upon his discharge from the military, the father lived with his parents. The father requested and the mother agreed to allow an extended visitation with the child at his parents’ home. After several months, the child was returned to her mother who subsequently agreed to allow the child to return for visitation with the husband while the child attended kindergarten. Shortly, after the child returned to him, the father petitioned for modification of primary residency and child support. After hearing, the court awarded primary custody to the father. The order awarding custody to the father relies heavily on the amount of time the child has spent with the father even though the mother agreed to this liberal visitation. As we stated in Henderson v. Henderson, 537 So. 2d 125, 127 (Fla. 1st DCA 1988), appeal dismissed, 542 So. 2d 989 (Fla.1989), “allowing this agreement to serve as a basis for transferring custody would have the deleterious effect of discouraging cooperation between parents when they agree to make temporary changes in their children’s living arrangements to serve their children’s best interests.” See also Evans v. Evans, 490 So. 2d 1035 (Fla. 1st DCA 1986).
The other factors listed in the trial court’s order neither separately nor cumulatively evidence a substantial and material change warranting a modification of custody. The father has failed to carry his “extraordinary burden.” For these reasons, we reverse the court’s order modifying the primary residence of the minor child and remand this cause with directions that primary physical custody of the child be returned to appellant in accordance with the terms of the final judgment of dissolution. The court may make such necessary further provisions to assure reasonable visitation with appellee.
ERVIN, MINER and BENTON, JJ., concur.
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Citator
Cited By (11 total)
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Bartolotta v. Bartolotta, 687 So. 2d 1385 (Fla. 4th DCA 1997)…sella, 569 So. 2d 848 (Fla. 4th DCA 1990). While a custody order should not be disturbed absent abuse of discretion, a trial court has far less discretion in modifying a custody order than in making the original determination. E.g., Smoak v. Smoak, 658 So. 2d 568 (Fla. 1st DCA 1995). To justify modification, the noncustodial parent carries an “extraordinary burden” to prove the occurrence of a substantial and material change in circumstances since the original custody order’s entry. E.g., Kelly v. Kelly, 642…
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Landingham v. Landingham, 685 So. 2d 946 (Fla. 1st DCA 1996)…ange of circumstances. However, the specifics of what must be shown to constitute a substantial change of circumstances in each case may differ greatly.2 In a modification of custody, the burden has been described as “extraordinary.” Smoak v. Smoak, 658 So. 2d 568 (Fla. 1st DCA 1995). The question before us is: To what extent should this extraordinary standard be applied to a party seeking to modify a relocation restriction? In the present case, the issue may be presented as whether a voluntary move by the c…
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Kilgore v. Kilgore, 729 So. 2d 402 (Fla. 1st DCA 1998)…ntial and material change of circumstances, and (2) the welfare of the child will be promoted by the change in custody. See Neely v. Neely, 691 So. 2d 39, 40 (Fla. 1st DCA 1997); Myers v. Myers, 673 So. 2d 49, 50 (Fla. 1st DCA 1995); Smoak v. Smoak, 658 So. 2d 568 (Fla. 1st DCA 1995); Blosser v. Blosser, 707 So. 2d 778, 780-81 (Fla. 2d DCA 1998). A modification order should be reversed if the noncustodial parent fails to allege the occurrence of a substantial and material change of circumstances, and the tria…1 / 2
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Zediker v. Zediker, 444 So. 2d 1034 (Fla. 1st DCA 1984)
- Evans v. Evans, 490 So. 2d 1035 (Fla. 1st DCA 1986)
- Henderson v. Hal Henderson, 537 So. 2d 125 (Fla. 1st DCA 1988)