JOSEPH D. MYERS, APPELLANT,
v.
SONYA D. MYERS, APPELLEE
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Joseph Myers appealed a trial court's modification of child custody, which transferred primary residential custody of his son Lee from him to the mother, Sonya Myers. The appellate court reversed and remanded, finding insufficient evidence to meet the strict standard required for custody modification.
No. The court reversed and remanded because there was insufficient competent, substantial evidence to support the modification. The evidence did not establish either a material change in circumstances or that the child's welfare would be promoted by the custody change.
[1] Modification of a child custody award requires proof of a substantial or material change in circumstances and that the child's welfare will be promoted by the change.
[2] A parent's overprotectiveness and antagonism toward the other parent, without more, is insufficient to establish a material change in circumstances warranting modificatio…
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Join FLexlaw to unlock all legal intelligence“The noncustodial parent seeking to modify an award of custody carries an 'extraordinary burden.'”
Establishes the high legal standard required for custody modification appeals.
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Join FLexlaw to unlock all legal intelligenceJoseph and Sonya Myers had a minor child, Lee, who suffers from ataxic cerebral palsy. The original custody award gave Joseph primary residential cust…
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ERVIN, Judge.
Joseph Myers appeals a final judgment modifying a child-custody award changing the primary residential custody of the parties’ minor child, Lee, who suffers from ataxic cerebral palsy, from appellant to appellee, Sonya Myers. We reverse and remand, because the evidence did not meet the strict standard necessary to support modification.
The trial court found that the father and paternal grandmother are overprotective of the child and antagonistic toward the mother, and that their “smothering behavior” and “open animosity” are detrimental to the child. There is no competent, substantial evidence in the record to support this conclusion. There was no evidence that the father’s participation in his son’s school, karate lessons, and boy scout troop was detrimental to Lee. There was no evidence that the grandmother’s presence at her grandson’s school interfered with his development. On the contrary, evidence was presented that school personnel and Lee’s karate teacher consider the father’s participation to be positive.
The parties’ stipulation for visitation does not require the parent with whom Lee is staying to guarantee telephone access to the other parent. Nor does it authorize the mother’s current husband to pick Lee up from his daycare center. The evidence, moreover, that the grandmother and daycare staff speak about Lee’s mother in derogatory terms within earshot of Lee is regrettable but insufficient to warrant modification of custody. The evidence submitted that the father does not keep the mother informed about certain of Lee’s activities, when she has the ability to keep herself so informed, simply demonstrates a communication problem between the parties. Although such conduct is less than exemplary, it clearly does not establish a material change of circumstances. Zediker v. Zediker, 444 So. 2d 1034 (Fla. 1st DCA 1984).
The expert testimony provided by Dr. James Hord, clinical psychologist, was, similarly, unpersuasive. The most that can be said of his disagreement with the father and grandmother’s care was that they permitted Lee to use a bottle and diaper when he was almost five years old, and that the father allowed his son to sleep with him and the father’s girlfriend. The record, however, shows that the bottle and diaper use stopped once the mother expressed her concern to the father. In regard to the sleeping incident, Dr. Hord never inquired into the circumstances, such as whether Lee had simply fallen asleep on the bed while watching television with the adults. In fact, Dr. Hord acknowledged that the child might have dreamed the incident.
The noncustodial parent seeking to modify an award of custody carries an “extraordinary burden.” Zediker, 444 So. 2d at 1036. The noncustodial parent must show: (1) a substantial or material change in circumstances of the parties since entry of the original custody order, and (2) that the welfare of the child will be promoted by a change in custody. Shelley v. Shelley, 480 So. 2d 166, 168 (Fla. 1st DCA 1985), review denied, 491 So. 2d 280 (Fla.1986). In our judgment there is no competent, substantial evidence sufficient to support the trial court’s decision to modify the original custody order. We direct the court on remand to deny the mother’s petition for modification and reconsider the father’s counter-petition regarding the visitation schedule.
REVERSED and REMANDED.
BOOTH and WEBSTER, JJ., concur.
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Karie Lynn Gibbs v. Gibbs, 686 So. 2d 639 (Fla. 2d DCA 1996)…cation of the custody provision. The opinion noted that there was no evidence that a change in the mother’s retirement status was “detrimental to the child.” Id. at 588. See also Miller v. Miller, 671 So. 2d 849 (Fla. 5th DCA 1996); Myers v. Myers, 673 So. 2d 49 (Fla. 1st DCA 1995). Most recently, in Grwmney, relying on Eddy and Jahlon, this court described the test in this manner: The parent seeking the transfer bears the “extraordinary” burden to prove a change in circumstances so substantial that the c…
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Kilgore v. Kilgore, 729 So. 2d 402 (Fla. 1st DCA 1998)…bears the extraordinary burden of proving (1) a substantial 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 substa…
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McKINNON v. Staats, 899 So. 2d 357 (Fla. 1st DCA 2005)…does not keep the father apprised of a child’s activities, and the father has the ability to keep himself informed, such evidence only establishes a communication problem between the parents and not a detrimental impact on the child. Myers v. Myers, 673 So. 2d 49, 50 (Fla. 1st DCA 1995). This communication problem does not constitute a change in circumstances for the purposes of a custody modification. Id. [*361] In this case, communication between the parties has been difficult. While the child participated…
Authorities Cited
- Zediker v. Zediker, 444 So. 2d 1034 (Fla. 1st DCA 1984)
- Valinda Lee Shelley v. Shelley, 480 So. 2d 166 (Fla. 1st DCA 1985)