TONYA YOUNG, APPELLANT,
v.
JAMES YOUNG, APPELLEE
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A Florida appellate court reversed a trial court's order that transferred primary residential custody of a 6-year-old child from the mother to the father. The court held that absent evidence of actual detriment to the child's needs or well-being, a parent seeking to modify custody cannot succeed merely by showing the other parent's home would be "better."
The appellate court reversed, holding that the former husband failed to present evidence establishing that the child's needs were unmet or that the living conditions or care provided by the former wife had been detrimental to the child. A change in custody is appropriate only when evidence demonstrates that maintaining the status quo would be detrimental to the child's overall best interests, not merely that one parent's home would be "better."
[1] A parent seeking to modify a prior award of primary residential custody must prove that circumstances have substantially changed and that a change in custody would be in…
[2] A change in custody is appropriate only when it will so clearly promote or improve the child's well-being that maintaining the status quo would be detrimental to the chil…
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Join FLexlaw to unlock all legal intelligence“carries an extraordinary burden' " to plead and prove that the parties' circumstances have changed substantially since the entry of the last order addressing custody and that a change in custody would be in the best interest of the child”
Establishes the high standard required for modifying an existing custody order
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Join FLexlaw to unlock all legal intelligenceThe parties had a 6-year-old child for whom the former wife had primary residential custody. The former wife subsequently had another child out of wed…
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WEBSTER, J.
The former wife seeks review of an order changing the primary residential custody of the parties’ 6-year-old child to the former husband based primarily upon the facts that the former wife had had another child out of wedlock, who was living with her and the parties’ child, and that the living conditions of appellant and the children were somewhat less than ideal. Because the evidence failed to establish either that the child’s needs were being unmet in any way or that maintaining the status quo would be detrimental to the child, we reverse.
The parent seeking to modify a prior award of primary residential custody “ ‘carries an extraordinary burden’ ” to plead and prove that the parties’ circumstances have changed substantially since the entry of the last order addressing custody and that a change in custody would be in the best interest of the child. Zediker v. Zediker, 444 So. 2d 1034, 1036 (Fla. 1st DCA 1984) (emphasis in original). Pursuant to this test, a change of custody is appropriate only when, having considered all of the factors listed in section 61.13(3), Florida Statutes,
the trial court finds that a change in custody will so clearly promote or improve the child’s well-being to such an extent that any reasonable parent would understand that maintaining the status quo would be detrimental to the child’s overall best interests. This test involves more than a decision that the petitioning parent’s home would be “better” for the child, and requires a determination that there is some significant inadequacy in the care provided by the custodial parent. Gibbs v. Gibbs, 686 So. 2d 639, 641 (Fla. 2d DCA 1996). The evidence presented by the former husband in support of his motion failed to satisfy this test.
The former husband did present evidence from which the trial court might have concluded, as it apparently did, that his home would be “better” for the child. However, he presented no evidence to suggest that either the living conditions or the care provided by the former wife had been detrimental to the child in any way, or that any of the child’s needs were not being met. Because no evidence was presented to suggest that either the living conditions or the care provided to the child by the former wife had been detrimental to the child, or that any of the child’s needs were not being met, the trial court should not have changed custody from the former wife to the former husband. See, e.g., Kelly v. Kelly, 642 So. 2d 800 (Fla. 2d DCA 1994) (evidence that the mother had moved and changed jobs five times and lived with a boyfriend who was purportedly abusive toward her was not sufficient to warrant a change of custody absent evidence that the mother was failing to meet the child’s needs in some way); Sanchez v. Sanchez, 575 So. 2d 744 (Fla. 5th DCA 1991) (the fact that the mother was about to give birth to a child out of wedlock did not warrant a change of custody absent evidence that the child who was the subject of the custody dispute would be adversely affected as a result). Accordingly, the order changing the primary residential custody of the parties’ child to the former husband is reversed.
REVERSED.
ALLEN and VAN NORTWICK, JJ., CONCUR.
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Citator
Cited By
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Cooper v. Gress, 854 So. 2d 262 (Fla. 1st DCA 2003)…a. 1st DCA 2002). Clearly* “[a] trial court’s authority and discretion in a modification proceeding are more restricted than at the time of the initial custody determination.” Newsom v. Newsom, 759 So. 2d 718, 719 (Fla. 2d DCA 2000); Young v. Young, 732 So. 2d 1133 (Fla. 1st DCA 1999); Jablon v. Jablon, 579 So. 2d 902 (Fla. 2d DCA 1991); Zediker v. Zediker, 444 So. 2d 1034, 1036 (Fla. 1st DCA 1984) (describing movant’s “extraordinary burden” to satisfy “substantial change in circumstances” and “children’s best…
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Perez v. Perez, 767 So. 2d 513 (Fla. 3d DCA 2000)…ting a substantial change in circumstances since the entry of the initial custody decree and that the child’s best interest or welfare will be promoted by the change. See Sullivan v. Sullivan, 736 So. 2d 103, 105 (Fla. 4th DCA 1999); Young v. Young, 732 So. 2d 1133, 1134 (Fla. 1st DCA 1999); Chant v. Chant, 725 So. 2d 445, 447 (Fla. 2d DCA 1999); Schweinberg v. Click, 627 So. 2d 548, 551 (Fla. 5th DCA 1993). In applying this two-prong test for modification, it is insufficient that the petitioning parent may po…
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Ogilvie v. Ogilvie, 954 So. 2d 698 (Fla. 1st DCA 2007)…. Burger, 862 So. 2d 828, 831-32 (Fla. 2d DCA 2003); Perdices v. Perdices, 800 So. 2d 289, 290 (Fla. 3d DCA 2001); Muniz v. Muniz, 789 So. 2d 370, 371-72 (Fla. 3d DCA 2001); Goodmon v. Goodmon, 779 So. 2d 490, 491 (Fla. 2d DCA 2000); Young v. Young, 732 So. 2d 1133, 1134 (Fla. 1st DCA 1999); Metcalfe v. Metcalfe, 655 So. 2d 1251, 1253 (Fla. 3d DCA 1995); Kelly v. Kelly, 642 So. 2d 800, 802 (Fla. 2d DCA 1994), to the extent they imported into the best interest prong a "detriment” or "adverse impact” component.…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Zediker v. Zediker, 444 So. 2d 1034 (Fla. 1st DCA 1984)
- Karie Lynn Gibbs v. Gibbs, 686 So. 2d 639 (Fla. 2d DCA 1996)
- Kelly v. Kelly, 642 So. 2d 800 (Fla. 2d DCA 1994)
- Sanchez v. Sanchez, 575 So. 2d 744 (Fla. 5th DCA 1991)