MARY HELEN JOHNS, APPELLANT,
v.
KELTON L. JOHNS, APPELLEE
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A Florida appellate court affirmed a trial court's modification of a divorce decree transferring custody of two minor children from their maternal grandmother to their father, who had become financially stable and remarried with a home suitable for the children.
The trial court's modification of custody was properly within its discretion and should be affirmed because the evidence supported the lower court's findings, and parents have a natural legal right to custody of their children so long as the ultimate welfare of the children is the controlling consideration.
“a parent has a natural God-given legal right to enjoy the custody, fellowship and companionship of his offspring”
Establishes the foundational legal principle that parents have a fundamental right to custody, though limited by the child's welfare.
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Join FLexlaw to unlock all legal intelligenceKelton L. Johns and his wife stipulated during their divorce to place their two minor children in the custody of their maternal grandmother while the …
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This is an appeal^ from an order modifying the final decree in a divorce case. Kel-ton L. Johns petitioned the court for modification of the final decree which had been entered in the suit for divorce brought by the petitioner’s wife. In the original suit, petitioner had, with his wife, stipulated that the parties’ two minor children be placed in the custody of their maternal grandmother. Petitioner sought to have such custody transferred to himself.
*785The record shows that at the time of the divorce the petitioner was in the military service and agreed to have the custody of the children placed with the mother of his wife. The record further shows that subsequent to the divorce, the petitioner remarried and, at the present time, has a home available for his two children. The lower court, in his order granting the change of custody from the maternal grandmother to the father, found that the mother of the children was not a proper person to have their custody and further found as follows:
“The Court finds that Petitioner has regularly contributed financially to the suppoit of his children, that he is happily remarried, that he and his present wife, who is twenty-one (21) years of age and appears to be highly respectable, are exceedingly anxious to have the children with them, that Petitioner is a Sergeant in the United States Air Force, has a good job, earns a liveable wage, and has the natural God given legal right to enjoy the custody, fellowship, and companionship of his children. It further appears to the Court that the ultimate welfare of the children will be best served by transferring custody of said children from the maternal grandmother to the father.”
There is competent evidence in the record to support the chancellor’s findings. The evidence was heard before the chancellor and he has a broad judicial discretion in determining the ultimate welfare of the children themselves.
In the case of State ex rel. Sparks v. Reeves, Fla.1957, 97 So.2d 18, 19, the Supreme Court, in an opinion by Mr. Justice Thornal, in a child custody case which was initiated by the father to have the children transferred to him from a custody award to their maternal grandparent, said:
“We, like, the Circuit Judge, are confronted with one of the most difficult of all problems to resolve. Our own consideration of the matter is necessarily influenced by the fact that the cause was heard below by an exceedingly able and experienced Circuit Judge who resolved the evidence in favor of the appellee. While we are here constrained to hold that the presumptive correctness of the order of the Circuit Judge has not been clearly overcome so as to justify a reversal, we are likewise compelled to point out that any subsequent consideration of this matter should be determined in the light of certain well-established principles which we herewith mention for the guidance of the parties and the trial Judge.
* 5}« * * * *
“While according to the trial Judge a broad judicial discretion in the matter we nevertheless cannot lose sight of the basic proposition that a parent has a natural God-given legal right to enjoy the custody, fellowship and companionship of his offspring. State ex rel. Weaver v. Hamans, 118 Fla. 230, 159 So. 31. This is a rule older than the common law itself and one which had its inception when Adam and Eve gave birth to Cain in the Garden of Eden. Gen. 4:1. In cases such as this one the only limitation on this rule of parental privilege is that as between the parent and the child the ultimate welfare of the child itself must be controlling.”
In the instant case, the Circuit Judge changed the custody from the maternal grandmother to the father. We find nothing in the record sufficient to overcome the presumption of the correctness of the lower court’s decision.
Affirmed.
KANNER, C. J., and SMITH, FRANK A., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Klein v. Klein, 204 So. 2d 239 (Fla. 3d DCA 1967)…l test in child custody cases is the welfare of the minor children. Epperson v. Epperson, Fla.1958, 101 So. 2d 367; Frazier v. Frazier, 109 Fla. 164, 147 So. 464 (1933); Johnson v. Johnson, Fla.App.1959, 114 So. 2d 338; Johns v. Johns, Fla.App.1958, 108 So. 2d 784. The judge below heard more than twenty-five witnesses during approximately six full days of trial before entering his order changing custody of the minors. He concluded that it would be in the minor children’s best interest to place them in the cu…
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Johnson v. Johnson, 114 So. 2d 338 (Fla. 1st DCA 1959)…one the only limitation on this rule of parental privilege is that as between the parent and the child the ultimate welfare of the child itself must be controlling.” See also Epperson v. Epperson, Fla., 101 So. 2d 367, and Johns v. Johns, Fla.App., 108 So. 2d 784. In other words, as we conceive the rule, while a parent has a natural God-given legal right to enjoy the custody, fellowship, and companionship of his offspring, that does not mean that under all circumstances a parent will be awarded the custody…
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Niles v. Niles, 299 So. 2d 162 (Fla. 2d DCA 1974)…child is but one of many fac [*163] tors which may be considered in determining the person in whose custody the child’s best interest would be served. The trial judge has broad discretion in making the determination. Johns v. Johns, Fla.App.2d 1959, 108 So. 2d 784. Since there is competent substantial evidence of changed circumstances which would support the order changing custody, this order is Affirmed. HOBSON, A. C. J., and McNULTY, J., concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State ex rel. Charles B. Sparks v. Mrs. A. E. Reeves, 97 So. 2d 18 (Fla. 1957)
- State v. Augustus P. Hamans, 118 Fla. 230 (Fla. 1935)