SUSAN KENDALL, APPELLANT,
v.
DAVID KENDALL, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Susan Kendall appeals an order granting her former husband's emergency motion for temporary modification of custody of their daughter. The trial court modified custody based on perceived instability in the mother's living situation and life circumstances, but the appellate court reversed, finding insufficient evidence of substantial change or harm to the child to justify the modification.
The court reversed the temporary custody modification order. To justify temporary modification, the moving party must establish both a substantial change in condition of one or both parties and that the modification serves the child's best interests. Here, the mother had established a stable home by the hearing, and there was no evidence the child suffered adverse consequences from her mother's circumstances.
[1] A temporary modification of custody requires proof of a substantial change in the condition of one or both parties and that the change in custody serves the best interest…
[2] Frequent moves, a less stable lifestyle, or poor relationship choices, standing alone, may not support a custody modification if the residential parent has established a…
Previewing 2 of 3 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“In order to obtain a temporary modification of custody, the moving party must establish (1) that there has been a substantial change in the condition of one or both parties and (2) that the change in custody serves the best interests of the child.”
Establishes the two-part legal test required for temporary custody modification
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceSusan Kendall had moved frequently, became pregnant, remarried, and filed for divorce. The father alleged the mother put their child on a plane alone …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Substantial Change In Condition cases and more on FLexlaw
STEVENSON, J.
In this appeal, Susan Kendall challenges an order granting the former husband’s emergency motion for temporary modification of custody of the couple’s daughter. Despite the discretion afforded trial judge’s in child custody matters, we reverse.
The father’s “emergency” motion alleged (1) that the mother had conducted herself “in a manner inconsistent with the best interests of the child” by continuing to change addresses, becoming pregnant, getting married and, then, filing for divorce shortly thereafter; (2) that the mother put their child on a plane, alone, without instructing the father where the child would be; (3) that the mother was alienating the child and refusing to allow phone visitation; and (4) that following her spring break visit with him, their daughter did not wish to return to her mother. Following an evidentiary hearing, the trial judge granted the father’s motion. While the judge found that the wife had mishandled the child’s visitation with her father, he did not believe that this was sufficient to justify a change of custody. Instead, the judge found that the change of custody was warranted because “more stability” exists for the child with the father. As support for his decision, the judge pointed to the facts that the mother had moved out of her parents’ home and the mother was pregnant and in the middle of divorce proceedings — “problems” that the judge believed would be resolved by the time of the final custody hearing.
In order to obtain a temporary modification of custody, the moving party must establish (1) that there has been a substantial change in the condition of one or both parties and (2) that the change in custody serves the best interests of the child. See Matin v. Hill, 801 So. 2d 1003, 1004 (Fla. 4th DCA 2001). It is equally as true that “[f|requent moves, a less stable lifestyle, ' [and] even poor relationship choices standing alone may not support a custody modification where the residential parent has moved out of necessity, has subsequently established a stable home, and the child’s needs have always been met.” Sullivan v. Sullivan, 736 So. 2d 103, 105 (Fla. 4th DCA 1999); see also Blosser v. Blosser, 707 So. 2d 778 (Fla. 2d DCA 1998); Kelly v. Kelly, 642 So. 2d 800 (Fla. 2d DCA 1994); Grumney v, Haber, 641 So. 2d 906 (Fla. 2d DCA 1994).
Here, the only evidence at the hearing was that although the mother had moved frequently, by the time of the hearing she had rented a two bedroom apartment for herself and her daughter. Moreover, there was no testimony that the child had suffered any adverse consequences as the result of the changes in her life. Instead, the child’s kindergarten teacher and the instructor of her advanced reading program testified that she was doing well in school, exhibited no behavior indicating that she was unhappy, and appeared to have a good relationship with her mother. In short, the reasons advanced by the judge and the evidence presented at the hearing simply cannot support the temporary custody modification. Accordingly, the order granting the former husband’s emergency motion for temporary custody modification is reversed.
REVERSED and REMANDED.
KLEIN and TAYLOR, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Ingrid BON v. Nestor A. Rivera, 10 So. 3d 193 (Fla. 4th DCA 2009)…temporary change of custody of the parties’ minor children. We reverse the trial court’s order because the former husband did not allege nor did the trial court find that there has been a substantial change in circumstances. See Kendall v. Kendall, 832 So. 2d 878, 879-80 (Fla. 4th DCA 2002) (citing Matin v. Hill, 801 So. 2d 1003, 1004 (Fla. 4th DCA 2001)). The former husband and former wife were married in 1996 and have two minor children together. When they divorced in 2006, the trial court incorporated th…1 / 2
-
Kerstin Williams v. Williams, 845 So. 2d 246 (Fla. 2d DCA 2003)…rred, which was of at least temporary duration, and (2) the best interests of the child would be promoted by the temporary change in custody, pending either a return to normalcy or a final hearing to modify permanent custody. See Kendall v. Kendall, 832 So. 2d 878, 880 (Fla. 4th DCA 2002); Antonetti v. Amato, 544 So. 2d 286, 287 (Fla. 1st DCA 1989). The former husband argues that the trial court was not required to consider the best interests of the child pursuant to Bini v. Bini, 828 So. 2d 470 (Fla. 5th DC…
-
Argamon v. Shlomo Argamon, 949 So. 2d 266 (Fla. 4th DCA 2007)…ation. We conclude that the order is in effect a temporary change of custody which requires a finding of a substantial change of circumstances and a finding that the change of custody is in the best interests of the children. See Kendall v. Kendall, 832 So. 2d 878, 879-80 (Fla. 4th DCA 2002); McGlamry v. McGlamry, 608 So. 2d 553, 554-55 (Fla. 4th DCA 1992). The trial court did not make these findings in its order. Although the court found that the former husband showed that the children would be at substantia…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kelly v. Kelly, 642 So. 2d 800 (Fla. 2d DCA 1994)
- Charlana M. Blosser v. Blosser, 707 So. 2d 778 (Fla. 2d DCA 1998)
- Sullivan v. Sullivan, 736 So. 2d 103 (Fla. 4th DCA 1999)
- Grumney v. Haber, 641 So. 2d 906 (Fla. 2d DCA 1994)
- Nattassia Matin v. Hill, 801 So. 2d 1003 (Fla. 4th DCA 2001)