GREGORY WADE HEMBREE, APPELLANT,
v.
KELLI LEE FLOWERS THOMAS, A/K/A KELLI LEE HEMBREE, APPELLEE
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The trial court reversibly erred by changing primary custody without an evidentiary hearing on the child's best interests.
The former husband, who had primary residential custody, was incarcerated. The trial court awarded temporary primary custody to the former wife withou…
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WOLF, J.
Appellant, the former husband, challenges an order of the trial court awarding temporary primary residential custody to the former wife. Appellant raises several issues on appeal, only one of which we need to address: whether the trial court reversibly erred by changing primary custody from the father to the mother without an evidentiary hearing concerning the best interests of the child. We agree with appellant and reverse for an evidentiary hearing.
The instant case is similar to the situation addressed by the Second District Court of Appeal in Sinclair v. Sinclair, 804 So. 2d 589 (Fla. 2d DCA 2002), where a father who had primary residential custody was incarcerated and the children had resided primarily in the home of their paternal grandparents. While the incarceration clearly constituted a substantial change in circumstances, the trial court was required to address the best interests of the child. Id. at 591-92, 594.1 A trial court’s decision relating to this factor and to the modification of custody must be based on factual findings supported by competent substantial evidence. See Boykin v. Boykin, 843 So. 2d 317, 321 (Fla. 1st DCA 2003).
Thus, the trial court erred in refusing to hold an evidentiary hearing on the issue of the best interests of the child. We, therefore, reverse and remand for an evidentiary hearing on this issue.
VAN NORTWICK and BROWNING, JJ., Concur. . The former husband concedes that his incarceration constituted a substantial change of circumstances and only requests a remand for an evidentiary hearing on the best interests of the child.
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Miami Herald Media Co. v. S.-P, 961 So. 2d 988 (Fla. 3d DCA 2007)…o the public upon determining that the public interest or the welfare of the child is best served by so doing.” § 39.507(2), Fla. Stat. (2006). However, such a determination must be supported by competent substantial evidence. See Hembree v. Thomas, 906 So. 2d 321 (Fla. 1st DCA 2005)(“A trial court’s decision relating to [the best interest of the child] and to the modification of custody must be based on factual findings supported by competent substantial evidence.”). See also R.F. v. Fla. Dep’t of Children &…
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Gomez v. Suarez, 992 So. 2d 272 (Fla. 5th DCA 2008)…entiary hearing was necessary before effecting a transfer of temporary custody. The court must conduct an evidentiary hearing when addressing the issue of temporary custody in order to determine the best interests of the child. In Hembree v. Thomas, 906 So. 2d 321 (Fla. 1st DCA 2005), it was held that the trial court erred in refusing to hold an evidentiary hearing on the issue of the best interests of the child in temporary custody proceeding. In Foster v. Pearson, 925 So. 2d 1136, 1137 (Fla. 5th DCA 2006),…
Authorities Cited
- Sinclair v. Sinclair, 804 So. 2d 589 (Fla. 2d DCA 2002)
- Washington v. State, 843 So. 2d 317 (Fla. 3d DCA 2003)
- Boykin v. Boykin, 843 So. 2d 317 (Fla. 1st DCA 2003)