VILMA ADORNO, APPELLANT,
v.
EDISON RIVERA, SR., APPELLEE
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The Florida Fifth District Court of Appeal reversed a trial court's modification of child custody from mother to father, holding that the father failed to establish a substantial change in circumstances necessary to support the custody modification under Florida law.
The court reversed the custody modification because the trial court failed to find a substantial change in circumstances as required by Florida law. Although the father was economically better off and could provide more material support, this alone does not constitute the required substantial change of circumstances to meet the extraordinary burden test for modifying custody of a child who had resided with her mother her entire life.
[1] A party seeking modification of a child custody order must plead and establish that circumstances have substantially or materially changed since the original judgment.
[2] A party seeking modification of a child custody order must also establish that the change has such an important impact on the child that a change of custody is justified…
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Join FLexlaw to unlock all legal intelligence“The test to be applied by a trial court in considering a modification of child custody is two-pronged. First, the party seeking to modify a custody order must plead and establish that circumstances have substantially or materially changed subsequent to the entry of the original final judgment. Second, the party seeking modification must establish that the change has such an important impact on the child that the court is justified in imposing a change of custody in the best interests of the child.”
Establishes the legal standard required for custody modification under Florida law
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Join FLexlaw to unlock all legal intelligenceVilma Adorno and Edison Rivera, Sr. had a daughter born in 1990. The father had minimal involvement in the child's early life and was court-ordered to…
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MONACO, J.
Vilma Adorno (“Mother”), appeals a final judgment which changed primary residential custody from her to Edison Rivera, Sr. (“Father”), the natural father of a female child born to them in 1990.
The Father had little to do with the child for the first several years of her life, apparently because he was trying to save his marriage to another person. In fact, in 1991, the father was court-ordered to pay child support. Eventually, after his marriage was dissolved and he was settled into his second marriage, he filed a petition for child custody and other relief in 1998, alleging that there had been a substantial change of circumstances. The parties entered into a mediated agreement at that time in which the Father’s visitation rights were formally established. Two years later the Father filed an Amended Petition For Modification of Final Judgment in which he again alleged substantial change of circumstances. After the issues were joined, the trial court conducted an evidentiary hearing and rendered its Final Judgment Of Modification of Final Judgment in which it changed primary residential responsibility for the child from the Mother to the Father. The test to be applied by a trial court in considering a modification of child custody is two-pronged.
First, the party seeking to modify a custody order must plead and establish that circumstances have substantially or materially changed subsequent to the entry of the original final judgment.
Second, the party seeking modification must establish that the change has such an important impact on the child that the court is justified in imposing a change of custody in the best interests of the child. See Miller v. Miller, 671 So. 2d 849 (Fla. 5th DCA 1996); Schweinberg v. Click, 627 So. 2d 548 (Fla. 5th DCA 1993).
Moreover, the party seeking the modification carries an “extraordinary burden” of demonstrating the grounds underpinning the change. Zediker v. Zediker, 444 So. 2d 1034, 1036 (Fla. 1st DCA 1984).
The final judgment entered by the trial court makes findings reflecting that the child would be better off living with her father, and that a change would, accordingly, be in her best interest. The Father is undoubtedly better off economically than the Mother, and appears to be able to provide more for the child in a material sense. The final judgment, however, makes no finding that there has been a substantial change of circumstances that would support a modification in the custody of this child who has resided with her mother her entire life.
Indeed, in reviewing the record, we can find no change of circumstances that is apparent from the record, and certainly none that would meet the “extraordinary burden” test. Accordingly, we reverse the order changing primary residential custody, and remand for a hearing on the' Mother’s counter-petition for increased child support.
REVERSED and REMANDED for proceedings consistent with this opinion.
PETERSON and PLEUS, JJ., concur.
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Clark v. Clark, 35 So. 3d 989 (Fla. 5th DCA 2010)…DCA 1996); Schweinberg v. Click, 627 So. 2d 548 (Fla. 5th DCA 1993). The first requirement is a prerequisite of the second. Mesibov, 16 So. 3d at 892. This court has described the petitioner’s burden as “extraordinary.” Id. at 891; Adorno v. Rivera, 847 So. 2d 1018, 1019 (Fla. 5th DCA 2003). Hence, while a trial court has discretion in awarding custody, that discretion is more restricted when modifying previously entered custody orders. Mesibov, 16 So. 3d at 891 (citing Wade v. Hirschman, 903 So. 2d 928, 935 (…
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Lane v. Lane, 16 So. 3d 179 (Fla. 5th DCA 2009)…d a history of spiking fevers.” Plainly, the first four factors do not approach the stringent standard that must be met for a court to change the custody designation in the final judgment based on the parties’ agreement. See, e.g., Adorno v. Rivera, 847 So. 2d 1018, 1019 (Fla. 5th DCA 2003); Agranoff v. Agranoff, 882 So. 2d 1085, 1086 (Fla. 2d DCA 2004); Jannotta v. Hess, 959 So. 2d 373, 374 (Fla. 1st DCA 2007); Good v. Good, 664 So. 2d 329, 330 (Fla. 3d DCA 1995). The trial court was right to be concerned wi…
Authorities Cited
- Zediker v. Zediker, 444 So. 2d 1034 (Fla. 1st DCA 1984)
- Schweinberg v. Click, 627 So. 2d 548 (Fla. 5th DCA 1993)
- Miller v. Miller, 671 So. 2d 849 (Fla. 5th DCA 1996)