OLGA SCARPETTA, APPELLANT,
v.
NICK F. DEMARTINO AND JEAN DEMARTINO, APPELLEES
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Olga Scarpetta sought a writ of habeas corpus to regain custody of her minor child from Nick and Jean DeMartino, claiming they held illegal custody. The Florida appellate court affirmed the trial judge's denial of the petition, finding that the child's best interests were served by remaining with the DeMartinos despite a prior New York custody order.
The court affirmed the trial judge's decision that the best interests and welfare of the child were served by leaving custody with the DeMartinos. While sister state custody orders are not entitled to full faith and credit, they may be given great weight under the doctrine of comity, but the trial court properly applied the best interests standard based on the changed circumstances.
[1] Child custody orders of sister states are not entitled to full faith and credit but may be given great weight under the doctrine of comity.
[2] A trial court's ruling on child custody will be affirmed if there is sufficient, competent, and substantial evidence in the record to support it.
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Establishes the legal standard for how Florida courts treat out-of-state custody orders
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Join FLexlaw to unlock all legal intelligenceOlga Scarpetta filed for habeas corpus against Nick and Jean DeMartino regarding custody of her minor child, Lenore. A hearing was held where both par…
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Olga Scarpetta filed a petition for writ of habeas corpus against Nick F. and Jean DeMartino alleging they had illegal custody of her minor child, Lenore, and she prayed for custody of Lenore. Appropriate pleadings were filed and a hearing held. The parties appeared, testimony was taken, and the petition was thereafter denied. She has appealed.
This appears to be one of those tragic situations in which one of two innocent parties must suffer. We do not attempt to assess fault or blame to either party.
We have carefully reviewed the record and briefs prepared by able counsel. The parties agree that a child custody order of a sister state is not entitled to full faith and credit but may be given great weight under the doctrine of comity. See New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133 (1947); Powell v. Powell, Fla.App.1971, 242 So.2d 138; Mirras v. Mirras, Fla.App.1967, 202 So.2d 887; Fox v. Fox, Fla.App.1965, 179 So.2d 103; State ex rel. Fox v. Webster, Fla.App.1963, 151 So.2d 14; Avery v. Heermance, Fla.App.1962, 138 So.2d 775; Foster v. Sharpe, Fla.App.1959, 114 So.2d 373; Bachman v. Mejias, 1 N.Y.2d 575, 154 N.Y.S.2d 903, 136 N.E.2d 866 (1956); Annot., 35 A.L.R.3d 520, 561; and Ehren-zweig, Interstate Recognition of Custody Decrees, 51 Mich.L.Review, 345, 352 (1953).
We have and do give great weight and respect to the orders of sister states but we conclude, under the circumstances of this case, that the trial judge followed proper procedure and law in ruling that the best interests and welfare of Lenore were served by leaving her custody with the ap-pellees. There is sufficient, competent and substantial evidence in the record on appeal to affirm his ruling. See Arnd’t v. Prose, Fla.1957, 94 So.2d 818; Fielding v. Highsmith, 152 Fla. 837, 13 So.2d 208 (1943); State ex rel. Weaver v. Hamans, 118 Fla. 230, 159 So. 31 (1935); Hancock v. Dupree, 100 Fla. 617, 129 So. 822 (1930); Witt v. Burford, 84 Fla. 201, 93 So. 186 (1922); McKinney v. Weeks, Fla.App.1961, 130 So.2d 310; and 15 Fla.Jur. Habeas Corpus § 62.
The order appealed herein is, therefore,
Affirmed.
ON REHEARING DENIED
Appellant has filed a vigorous and well reasoned petition for rehearing.
We point out that the change in circumstances and passage of time giving rise to the relationship between the baby, Lenore, and the DeMartinos occurred in great part because of appellant’s consent, through her New York attorneys, that the custody of Lenore remain with the DeMartinos during the pendency of certain New York legal proceedings.
The petition for rehearing, having been considered, is denied. See Robertson v. Bass, Fla.1906, 52 Fla. 420, 42 So. 243; and Crane v. Hayes, Fla.1971, 253 So.2d 435.
Cases With Similar Vibessemantic neighbors from the corpus
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Vivienne Brown and Arthur Brown v. TAN, 395 So. 2d 1249 (Fla. 3d DCA 1981)…r years court will not disturb status quo where there is no showing that interest of children demand change). See also Brown v. Brown, 388 So. 2d 623 (Fla.4th DCA 1980); Trujillo v. Trujillo, 378 So. 2d 812 (Fla.3d DCA 1980); Scarpetta v. DeMartino, 254 So. 2d 813 (Fla.3d DCA 1971), cert. denied, 409 U.S. 1011, 93 S.Ct. 437, 34 L.Ed.2d 305 (1972). [*1252] Similarly, appellant’s argument that the trial court has jurisdiction because it is in the best interest for the child under Section 61.1308(l)(b), must fai…
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Spencer v. Mrs. Rochelle Terebelo Spencer, 305 So. 2d 256 (Fla. 3d DCA 1974)…First, the court recognized that the principle of comity should be given consideration in cases of this nature. See, Crane v. Hayes, Fla.1971, 253 So. 2d 435; Mitchell v. Mitchell, Fla.App.1974, 294 So. 2d 44; Scarpetta v. DeMartino, Fla.App.1971, 254 So. 2d 813; Powell v. Powell, Fla.App.1971, 242 So. 2d 138; Fox v. Fox, Fla.App.1965, 179 So. 2d 103; Morris v. Kridel, Fla.App.1965, 179 So. 2d 130; State ex rel. Fox v. Webster, Fla.App.1963, 151 So. 2d 14. However, the court held that material changes in c…
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Scarpetta v. DeMARTINO, 262 So. 2d 442 (Fla. 1972)…Certiorari denied. 254 So. 2d 813. ROBERTS, C. J., and ERVIN, BOYD and DEKLE, JJ., concur. McCAIN, J., dissents.…
Authorities Cited (15 total)
- NEW York ex rel. Halvey v. Halvey, 330 U.S. 610 (U.S. 1947)
- IDE v. City OF ST. Cloud, 152 Fla. 837 (Fla. 1943)
- Mrs W. M. Hancock v. Dupree, 100 Fla. 617 (Fla. 1930)
- Crane v. Hayes, 253 So. 2d 435 (Fla. 1971)
- State v. Augustus P. Hamans, 118 Fla. 230 (Fla. 1935)
- Percival A. Witt v. Husband, 84 Fla. 201 (Fla. 1922)
- Foster v. Sharpe, 114 So. 2d 373 (Fla. 3d DCA 1959)
- FOX v. FOX, 179 So. 2d 103 (Fla. 3d DCA 1965)
- Robertson v. Columbus Bass, 52 Fla. 420 (Fla. 1906)
- Mirras v. Mirras, 202 So. 2d 887 (Fla. 2d DCA 1967)