JOHN C. MARTENS, APPELLANT,
v.
STATE OF FLORIDA, EX REL. FRANK MAURY GROSSMAN, AS GUARDIAN AND FATHER OF GARY MAURY GROSSMAN, A MINOR, APPELLEE

Fla. 3d DCA | 1958-02-11
No. 57-152
CARROLL, CHAS., C. J., and PEARSON, J., concur.
100 So. 2d 440 Florida District Court of Appeal, Third District (1958) Positive Treatment
Cited by 7 cases

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Synopsis

This case involves a dispute over a minor child's custody between the father and the paternal grandfather. The appellate court affirmed the father's custody but remanded the case to allow the trial court to consider visitation rights for the grandfather.


Holding

The father is entitled to custody of the child, but the case is remanded to the trial court to consider and determine the question of partial custody or visitation rights for the grandfather during the summer months.


Key Quotes

“An appellate court generally will not disturb the ruling of a trial judge regarding the custody of a minor child in the absence of a clear showing of abuse in the exercise of his judicial discretion.”

Establishes the standard of review for child custody decisions.

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Facts & Procedural History

The father (appellee) sought and was awarded custody of his minor child in a habeas corpus proceeding. The child's paternal grandfather (appellant) ap…

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Opinion of the Court
HORTON, Judge.

HORTON, Judge.

This is an appeal from an order in habeas corpus proceedings awarding the custody *441of a minor child to the appellee-father. The appellant, who seeks reversal of the lower court’s custody order, is the grandfather of the minor child.

The appellant contends here that he is entitled to the custody of the minor child in preference to the appellee-father, or at least to partial custody or visitation during the summers. A petition for rehearing filed in the cause requested the lower court to provide, by amended order, visitation by the minor child with the grandparents. This petition alleged, and it is vigorously contended, that the welfare of the child would be best served by such an arrangement. The grandparents are the owners of a large summer resort at which there are numerous recreational facilities, all of which are familiar to the child and that they are in a position to provide great material benefits for him. It is obvious from the record that the grandparents have a deep affection for the son of their deceased daughter. On the other hand, the appellee-father was not shown to be unfit, but, on the contrary, was admitted to be a fit and proper person who undoubtedly could provide adequately for his child in a manner in keeping with the child’s best interests and welfare. However, in the custody order, the lower court, without deciding the point, sua sponte suggested the possibility of a voluntary agreement to accomplish just the purpose that the appellant now urges, by saying:

“In arriving at its conclusions and-judgment herein, the Court is impressed with the attachment and affection of the respondent and his wife for their minor grandson and trusts that this attachment and affection may be continued, and in this connection, interpolates the suggestion that at the proper time the father give consideration to permitting his son to spend some of his holiday or summer vacation periods with his grandparents at their home in Pennsylvania. It is believed that the child and grandparents alike would find enjoyment and happiness if such continued contacts and association could be arranged.”

What specifically prompted the lower court to make the foregoing observation is not clear, but it is abundantly clear that such comment was occasioned by the court’s concern for the welfare and best interests of the minor child. An appellate court generally will not disturb the ruling of a trial judge regarding the custody of a minor child in the absence of a clear showing of abuse in the exercise of his judicial discretion. See Grant v. Corbitt, Fla.1957, 95 So.2d 25. In addition, there can be no doubt that when a father has proven he is adequately able to care for his child in a manner in keeping with the child’s welfare, his legal right should not be overcome by the fact that another’s offering may be more copious. See State ex rel. Sparks v. Reeves, Fla.1957, 97 So.2d 18. It is not the desires of the respective parties who contend for custody, but the welfare of the child himself that is controlling.

Although the chancellor’s observations and comments as set out verbatim in this opinion indicated that he was aware of the fact that the child’s welfáre might be best served if he were permitted to visit with his grandparents, he nevertheless concluded by his order that they would be forever excluded from association with their grandson absent voluntary permission granted on the part of the father. Without in any way attempting to guide the trial judge in the exercise of his discretion, it is appropriate here to suggest that it was within the power and discretion of the trial judge in a habeas corpus proceeding for the custody of a child, to have considered and adjudicated the question of temporary custody or visitation rights in the grandparents. See Smith v. Smith, 160 Fla. 870, 36 So.2d 920. The appellant has orally suggested that this court enter an order awarding him temporary custody or visitation privileges during the summer months. However for this court to yield to such suggestion would be eminently unfair not *442only to the appellee but to the trial judge who should have an opportunity to pass upon the .question. It is apparent from his order that the trial judge did not consider that question or if he did, concluded that it was not properly before him. Accordingly, the order appealed is affirmed hut the cause is remanded with directions to the trial judge that he shall consider and determine the question of partial custody or visitation in the appellant during the summers, and for such further proceedings as he shall find necessary in the cause.

Affirmed and remanded for further proceedings.

CARROLL, CHAS., C. J., and PEARSON, J., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Foster v. Sharpe, 114 So. 2d 373 (Fla. 3d DCA 1959)
    …tely able to care for his or her child in a manner in keeping with the child’s welfare that the legal right of such parent may not be overcome by the fact that another’s offerings may be more copious. Martens v. State ex rel. Grossman, Fla.App.1958, 100 So. 2d 440; State ex rel. Sparks v. Reeves, Fla.1957, 97 So. 2d 18; cf. Frazier v. Frazier, 109 Fla. 164, 147 So. 464, 466. The judgment is therefore reversed. We recognize that in a custody proceeding the trial judge has a great advantage because he has the…
  • Annice A. Justice v. VAN Eepoel, 132 So. 2d 407 (Fla. 1961)
    …not abused the sound judicial discretion which it was his to exercise in the first instance in a case of this nature. Reynolds v. Alderman, 72 Fla. 39, 72 So. 369; State ex rel. Weaver v. Hamans, 118 Fla. 230, 159 So. 31; Martens v. State, Fla.App., 100 So. 2d 440. Our own personal reactions at the appellate level are not the standards by which our judgment must be guided. The rule is that unless we can conclude from our study of the record that the chancellor has acted arbitrarily or has in any fashion abuse…
  • FOX v. FOX, 183 So. 2d 700 (Fla. 3d DCA 1966)
    …ldren to the father. The finding of the trial judge on a question of custody, is entitled to great weight in the appellate court and will be reversed only upon a clear showing of abuse of discretion. Martens v. State ex rel. Grossman, Fla.App.1958, 100 So. 2d 440. The trial judge, at the direction of this court, fully heard both parties and their witnesses, and his finding is supported by evidence in the record. Affirmed.…

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