MICHAEL WAYNE ALLAN, APPELLANT,
v.
KELLEY E. ALLAN, APPELLEE
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Michael Allan challenges a trial court's denial of his petition to modify custody of his minor child. The appellate court reversed because the trial court applied the wrong legal standard by focusing on whether returning the child to the mother would be detrimental to her, rather than analyzing whether a substantial and material change of circumstances had occurred and whether modification was in the child's best interest.
The trial court applied the wrong test by focusing on whether returning the child to the mother would be detrimental to the mother, rather than determining whether a substantial change of circumstances occurred and whether modification was in the child's best interest. The evidence presented by the father proved a substantial change in circumstances and demonstrated that modification would be in the child's best interest, so the trial court abused its discretion in denying the petition.
[1] A trial court errs in a child custody modification proceeding by focusing on whether returning the child to the custodial parent would be detrimental, rather than on the…
[2] A parent seeking modification of a custody order bears the burden of proving a substantial and material change in circumstances since the final judgment and that a change…
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“The trial court erred by focusing primarily on the mother and whether it would be detrimental to return the child to the mother.”
Establishes the fundamental error in the trial court's analysis—it applied the wrong legal standard by examining factors irrelevant to the proper custody modification test.
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Join FLexlaw to unlock all legal intelligenceIn February 1992, the mother was designated primary residential parent of the minor child pursuant to a marital settlement agreement incorporated into…
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PER CURIAM.
Michael Allan challenges a final order denying his petition for modification of custody of his minor child. We reverse because the trial court applied the wrong test in determining whether modification should be granted.
On February 25, 1992, the mother was designated the primary residential parent of the minor child pursuant to a marital settlement agreement, the terms of which were incorporated into the final judgment of dissolution. Approximately one month later the parties verbally agreed that the father would keep the child for six months. However, it was approximately one year later before the mother requested that the child be returned.
The father filed a petition for modification of the final judgment in January 1993, seeking primary residential custody of the child. On March 31, 1993, the trial court entered a temporary order continuing the physical residence with the father. The final hearing on the father’s petition was held July 19, 1994. The trial court denied the father’s petition and directed that the child be returned to the mother no later than September 2, 1994. By this time, the child had reached the age of four and had resided with the father for approximately two and one-half years.
The trial court erred by focusing primarily on the mother and whether it would be detrimental to return the child to the mother. The function of the trial judge in a child custody proceeding is to determine what is in the best interests of the child. § 61.13(2)(b)l., Fla.Stat. (1993). The general rule is that a parent seeking a modification of custody bears the extraordinary burden to prove that a substantial and material change of circumstances has occurred since the final judgment and that a change in custody is in the child’s best interest. Jablon v. Jablon, 579 So. 2d 902 (Fla. 2d DCA 1991). The question to be addressed was not whether the child would suffer irreparable harm if physical custody was returned to the mother. Thus, the father had no burden to prove that the mother’s environment would be detrimental to the child. The question was whether the father proved a substantial change in circumstances since entry of the final judgment to justify a modification of the custody order and whether granting a modification would be in the child’s best interest. The father met his burden. On the record before us, we conclude that the evidence presented by the father proved a substantial change in circumstances and showed that modification of custody would be in the child’s best interest. Therefore, the trial court abused its discretion by denying the petition for modification of custody.
Reversed and remanded for proceedings consistent with this opinion.
CAMPBELL, A.C.J., and PATTERSON and FULMER, JJ., concur.
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Karie Lynn Gibbs v. Gibbs, 686 So. 2d 639 (Fla. 2d DCA 1996)…terests. 641 So. 2d at 907. This test was repeated in Kelly v. Kelly, 642 So. 2d 800 (Fla. 2d DCA 1994), review denied, 651 So. 2d 1194 (Fla.1995), and Heatherington v. Heatherington, 677 So. 2d 1312 (Fla. 2d DCA 1996). Finally, in Allan v. Allan, 666 So. 2d 170 (Fla. 2d DCA 1995), this court considered an unusual ease in which the trial court awarded custody to the mother in the final judgment but the parents voluntarily decided to change a child’s residence to the non-custodial father almost immediately t…
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Perez v. Perez, 767 So. 2d 513 (Fla. 3d DCA 2000)…will be served by change, but that it will be detrimental to children if custody is not changed). Other districts have not followed Grumney and Kelly, and the detriment-to-the-child standard is disfavored in the Second District. See Allan v. Allan, 666 So. 2d 170 (Fla. 2d DCA 1995). The District Court of Appeal, First District, consistently applies the two-part standard (substantial and material change in circumstances that promotes child’s best interests) announced in Zediker v. Zediker, 444 So. 2d 1034 (Fl…
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Mahmoud Ismail Ayyash v. Ayyash, 700 So. 2d 752 (Fla. 5th DCA 1997)…fith v. Griffith, 627 So. 2d 527 (Fla. 2d DCA 1993); Murphy v. Murphy, 621 So. 2d 455 (Fla. 4th DCA 1993). . See Duchesneau v. Duchesneau, 692 So. 2d 205 (Fla. 5th DCA 1997); Williams v. Williams, 676 So. 2d 493 (Fla. 5th DCA 1996); Allan v. Allan, 666 So. 2d 170 (Fla. 2d DCA 1996); Dillingham v. Dillingham, 667 So. 2d 337 (Fla. 1st DCA 1995); Silvestri v. Silvestri, 309 So. 2d 29 (Fla. 3d DCA 1975); Ebaugh v. Ebaugh, 282 So. 2d 14 (Fla. 4th DCA 1973). . Callaghan, Contemporary Family Law, Principles, Polic…
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