GARY K. HATHCOCK, APPELLANT,
v.
WINIFRED HATHCOCK, APPELLEE
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The court held that a trial judge's private conversation with children off the record, which influenced the custody decision, constitutes reversible error.
The trial court modified a divorce decree to make the former wife's home the primary residence for the parties' two children, relying in part on the c…
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BENTON, Judge.
Gary K. Hatheoek appeals an order of modification which decrees that his former wife’s home become the primary place of residence for the parties’ two children. We find no error except for the judge’s “conversation” off the record, while alone with the children. Nowak v. Nowak, 546 So. 2d 123, 124 (Fla. 1st DCA 1989).
Unlike Branch v. Branch, 631 So. 2d 386, 387 (Fla. 4th DCA 1994), where no party requested that the court reporter take down the child’s testimony, the former husband’s counsel did request here that the court reporter make a record. Such a request must be honored. Nowak. Appellee’s reliance on Gazdick v. Gazdick, 557 So. 2d 222 (Fla. 1st DCA 1990)(custody “decision ... was made ‘without reference to [the children’s] opinion,’ ” which was reported but not transcribed) is misplaced, since the trial judge explicitly relied here on the “reasonable preference of the children,” purportedly elicited dehors the record.
Although other evidence supports the order of modification, we are compelled to reverse on account of the procedural irregularity. Nowak, 546 So. 2d at 124. On remand, the trial court can examine the children on the record, or reconsider the custody question without taking the children's views into account.
Reversed and remanded.
BOOTH and VAN NORTWICK, JJ., concur.
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Cited By
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Hickey v. Burlinson, 33 So. 3d 827 (Fla. 5th DCA 2010)…ida Rule of Juvenile Procedure 8.6202 which provides: “The court shall assure that in camera proceedings with a child outside the presence of other parties are recorded unless otherwise stipulated by the parties.” The court in Hathcock v. Hathcock, 680 So. 2d 564, 565 (Fla. 1st DCA 1996), relied on Nowak when it held that a request that a court reporter transcribe a child’s in camera testimony “must be honored.” (Emphasis added.) See also Shaw v. Shaw, 455 So. 2d 1156 (Fla. 5th DCA 1984) (reversing the trial…
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Hamilton Monteiro v. Monteiro, 55 So. 3d 686 (Fla. 3d DCA 2011)…was required to protect the child’s best interest. Id. It is abundantly clear that the only method for the wife here, like the wife in Hickey, to prove her case was through the introduction of the children’s testimony. See also Hathcock v. Hathcock, 680 So. 2d 564 (Fla. 1st DCA 1996); Nowak v. Nowak, 546 So. 2d at 123. Moreover, Florida Family Law Rule of Procedure 12.407 and Hickey also make it clear that the children’s interests are of the utmost importance in domestic and sexual violence cases. See Hickey…
Authorities Cited
- Collins v. State, 546 So. 2d 123 (Fla. 1st DCA 1989)
- LOY v. S & S Equip. Sales, Inc., 631 So. 2d 386 (Fla. 3d DCA 1994)
- Gazdick v. Gazdick, 557 So. 2d 222 (Fla. 1st DCA 1990)