MARCIA KLEIN, APPELLANT,
v.
HERBERT KLEIN, 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.
In this child custody modification case, the Florida District Court of Appeal affirmed the trial judge's order transferring custody of minor children from the mother to the father, holding that the welfare of the children is the paramount test and that material facts unknown at the time of the original decree justified the modification.
The court affirmed the modification order, holding that while the welfare of the children is paramount, a final custody decree may be modified when there are materially changed circumstances or material facts unknown to the court at the time of the original decree, if such modification is essential to the child's welfare. The court found both conditions were satisfied here.
“the true and final test in child custody cases is the welfare of the minor children”
Establishes the paramount legal standard governing all custody determinations, regardless of parental gender.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe original divorce decree awarded custody of the children to the mother. The father subsequently petitioned to modify the custody order. The trial j…
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 Petition For Modification Of Custody cases and more on FLexlaw
The question of whether to remove a child from the custody of its natural mother is one over which judges have agonized from time immemorial.1
The original divorce decree granted custody of the children to the mother but upon the father’s subsequent petition for modification, an order was entered granting custody to him. It is from this post decretal order that the mother has taken this interlocutory appeal.
Although the law tends to favor the mother over the father in awarding permanent custody of young female minors, the true and final 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 custody of the father.
In Longstreth v. Frischkorn, Fla.App. 1965, 171 So.2d 550, where this court affirmed an order granting custody of a three year old child to the father, it was noted that:
ífí ‡ Jfc ‡ i]e ‡
“ * * * The trial judge did not find or hold that the plaintiff was not a fit parent. * * * The wording of the final decree shows that the chancellor properly had the best interests of the child in mind and determined from the record, as our inspection of the same record leads us to conclude he was well entitled to do, that at the time of the final decree the best interests of the child would be served by the father having custody. * * * ” (Emphasis supplied) Id. at 171 So.2d 551.
*241
We have examined the nearly 1900 pages of testimony carefully and have found no abuse of discretion to warrant reversal.
The mother has also raised the point that a court may not modify a final decree with regard to child custody unless there is a showing that the mother’s condition at the time of the hearing is such that it would not be in the best interests of the children to leave them in her custody with the burden of such proof upon the moving party.
We do not disagree with this proposition, but feel that it has been satisfied in this case. See Todd v. Todd, Fla.1952, 56 So.2d 441; Hoffman v. Linley, Fla.App.1967, 201 So.2d 638; Ritsi v. Ritsi, Fla.App.1964, 160 So.2d 159. The original custody decree was predicated primarily upon a stipulation between the parties which allowed custody of the children to the mother if a specified doctor should decide she was competent.
It has been held that the rule to be applied on a petition to modify a decree for custody is that while the welfare of the children ■ is of paramount concern, a final decree awarding custody to one parent, being res judicata of the matters involved, and known at the time of the decree, should not be modified to change the custody to the other parent, except upon materially changed circumstances, or for material facts unknown to the court at the time of the decree, cmd then only when it is shown to be essential to the welfare of the child.
See Ritsi, supra, Frazier, supra; and Hoffman, supra.
The record here reflects that there were material facts unknown to the court at the time of the original decree awarding custody to the mother, and under the rule, the court was within its authority and jurisdiction in entering its order changing the custody of the minor children from the mother to the father.
Without detailing the evidence presented in the record of 1,854 pages, we find that there was sufficient, substantial, competent evidence to sustain the decree of the chancellor and that the custody issue was properly determined by him, upon consideration of the applicable facts and circumstances presented as of the time of the hearing.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
-
Karie Lynn Gibbs v. Gibbs, 686 So. 2d 639 (Fla. 2d DCA 1996)…rewith there are circumstances relating to the present custody which are improper and harmful to the child or children so as to make it manifest that a change of custody is essential for their welfare. 160 So. 2d at 163-64. See also Klein v. Klein, 204 So. 2d 239 (Fla. 3d DCA 1967), cert. denied, 214 So. 2d 622 (Fla.1968). In Smith v. Smith, 212 So. 2d 117,118 (Fla. 2d DCA 1968), this court used the “promote welfare” requirement announced by the supreme court in Bennett v. Bennett, 73 So. 2d 274, 278 (Fla.1…
-
Schofield v. Franceska M. Schofield, 489 So. 2d 808 (Fla. 3d DCA 1986)…30 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133 (1947) (stating Florida rule that court which originally awarded custody is within its jurisdiction to change custody where material facts were unknown to court when order entered originally); Klein v. Klein, 204 So. 2d 239 (Fla. 3d DCA 1967) (same), cert. denied, 214 So. 2d 622 (Fla.1968).…
-
In re Adoption OF Wendy Dee Peterson, 344 So. 2d 638 (Fla. 4th DCA 1977)…that, absent the existence of a substantial change in conditions, an original award of custody may not be altered. Frye v. Frye, 205 So. 2d 310 (Fla. 4th DCA 1968); Nicholson v. Nicholson, 311 So. 2d 676 (Fla. 4th DCA 1975); see also Klein v. Klein, 204 So. 2d 239 (Fla. 3d DCA 1967). Although it is true, as the majority points out, that the father originally consented to the initial custody award to the grandparents primarily because of the nature of his employment (which necessitated a great deal of travel a…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Frazier v. Frazier, 109 Fla. 164 (Fla. 1933)
- Ritsi v. Ritsi, 160 So. 2d 159 (Fla. 3d DCA 1964)
- Epperson v. Epperson, 101 So. 2d 367 (Fla. 1958)
- Todd v. Todd, 56 So. 2d 441 (Fla. 1951)
- Johnson v. Johnson, 114 So. 2d 338 (Fla. 1st DCA 1959)
- Hoffman v. Linley, 201 So. 2d 638 (Fla. 3d DCA 1967)
- Johns v. Kelton L. Johns, 108 So. 2d 784 (Fla. 2d DCA 1959)
- Longstreth v. Frischkorn, 171 So. 2d 550 (Fla. 3d DCA 1965)