RUTH ANN JACOBS, FORMERLY RUTH ANN ROSS, APPELLANT,
v.
WARREN K. ROSS, APPELLEE
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An ex-wife appeals a trial court order clarifying the ex-husband's visitation rights with their minor son, which the appellate court found amounted to an improper division of custody. The court reversed, holding that the ex-husband failed to prove material and substantial changed circumstances and that the child's best interests required a gradual approach to renewing the father-child relationship rather than the extended visitation schedule ordered.
The appellate court reversed, holding that the ex-husband failed to prove any material change in circumstances since the original judgment and that the visitation order effectively constituted an improper division of custody. The court held that the child's best interests were better served by a gradual approach to renewing the father-child relationship rather than the extended visitation schedule imposed.
[1] A party seeking modification of child custody or visitation must prove a material and substantial change in circumstances and that the modification is in the child's best…
[2] A court order granting extensive visitation rights that effectively divides custody may be improper.
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Join FLexlaw to unlock all legal intelligence“A party seeking a modification of child custody or visitation arrangements has the burden of proving a material and substantial change in circumstances of the parties subsequent to the entry of the judgment of dissolution of marriage which would warrant modification, and further the party also must demonstrate that the change is in the child's best interest which is of paramount importance.”
Establishes the legal standard for modification of custody or visitation arrangements
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Join FLexlaw to unlock all legal intelligenceThe parties' marriage was dissolved on August 10, 1972, with the ex-wife receiving custody of their minor son Michael and the ex-husband given reasona…
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HAVERFIELD, Judge.
Appellant, ex-wife, by interlocutory appeal seeks review of the chancellor’s order clarifying the visitation rights of appellee, ex-husband.
A judgment dissolving the marital bonds of the parties was entered on August 10, 1972. Incorporated into the judgment was an agreement which provided that appellant have custody of the minor child, Michael, with appellee having reasonable visitation rights. Alleging that he has been denied his right of visitation and communication with his minor son since June 1973, appellee, Warren Ross, in January 1974 filed a motion for clarification of rights of visitation. The cause came on for hearing at which Michael’s psychologist testified that his father, the appellee, upsets him very much and that Michael needs to be freed from the problem before a serious emotional disturbance develops. A report of another psychologist also indicated that Michael needs a stable environment to develop properly. Appellee presented no evidence to the contrary. Finding changed circumstances, the chancellor entered the herein appealed order which provided, inter alia, that appellee be permitted (1) to visit with Michael one weekend each month beginning 4:00 P.M. on Friday and ending at 6:00 P.M. on Sunday at any place within the State of Florida of appellee’s choosing, (2) to have Michael visit with him for a consecutive one week period during the child’s summer vacation from school at any place within or without the State of Florida, and (3) to have Michael visit with him for a consecutive one week period alternatively each year during the child’s Christmas or Spring vacation from school. We reverse.
First, we conclude that the above order clarifying the appellee’s right of visitation with his minor son was in effect an order for divided custody. Cf. Kelley v. Kelley, Fla.1952, 56 So. 2d 439; Rudolph v. Rudolph, Fla.App.1962, 146 So. 2d 397.
A party seeking a modification of child custody or visitation arrangements has the burden of proving a material and substantial change in circumstances of the parties subsequent to the entry of the judgment of dissolution of marriage which would warrant modification, and further the party also must demonstrate that the .change is in the child’s best interest which is of paramount importance. See Teta v. Teta, Fla.App.1974, 297 So. 2d 642.
After an examination of the record, on appeal, we find that appellee has failed to illustrate any material change in conditions as they existed at the time of the judgment. It is also clear from the testimony of the child’s mother and psychologist and the report of the court appointed psychologist that Michael’s best interest would be served by a gradual approach toward a renewal of his relationship with his father, the appellee, until Michael can overcome his fears rather than the split custody order which was improper. Accordingly, the order herein appealed is reversed and the cause remanded to the court below to enter a new order granting appellee reasonable visitation rights which would best serve the interests of the minor child.
Reversed and remanded with directions.
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Perez v. Perez, 767 So. 2d 513 (Fla. 3d DCA 2000)…556 (Fla. 3d DCA 1987); Hussain v. Hussain, 493 So. 2d 1062 (Fla. 3d DCA 1986); Brush v. Brush, 414 So. 2d 37 (Fla. 3d DCA 1982); Adams v. Adams, 385 So. 2d 688 (Fla. 3d DCA 1980); Berlin v. Berlin, 369 So. 2d 434 (Fla. 3d DCA 1979); Jacobs v. Ross, 304 So. 2d 542 (Fla. 3d DCA 1974); Wilner v. Wilner, 167 So. 2d 234 (Fla. 3d DCA 1964); Avery v. Heermance, 138 So. 2d 775 (Fla. 3d DCA 1962). Plainly a showing of “detriment” is not a required element of a motion for modification in this district.11 [*523] III.…
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Nury Agudo v. Marcelo Agudo, 411 So. 2d 249 (Fla. 3d DCA 1982)…a Rule of Appellate Procedure 9.130(a)(3)(C) (iii). It is the effect of the change, not the name given it, that determines what it is, see Kelley v. Kelley, 56 So. 2d 439 (Fla.1952); Scott v. Scott, 401 So. 2d 879 (Fla. 3d DCA 1981); Jacobs v. Boss, 304 So. 2d 542 (Fla. 3d DCA 1974), and we hold that the order under review is one which determines custody. We turn now to the wife’s contention that the evidence presented by the husband did not demonstrate a substantial and material change in circumstances to s…
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Berlin v. Dawna Michele Berlin, 386 So. 2d 577 (Fla. 3d DCA 1980)…, Florida Statutes (1979), except where the children are of tender age, Dink-el v. Dinkel, supra. A trial court does not enjoy the same degree of discretion when modifying custody as it does in awarding custody in the initial decree. Jacobs v. Ross, 304 So. 2d 542 (Fla.3d DCA 1974); Frye v. Frye, 205 So. 2d 310 (Fla.4th DCA 1967). In this case, the trial court made findings which directly contravened its order when it found: The Court has heard the testimony of the children’s school teachers as well as the…
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- McCONNELL v. Brumos Porsche Audi Corp., 297 So. 2d 642 (Fla. 1st DCA 1974)
- Dina Teta v. Teta, 297 So. 2d 642 (Fla. 1st DCA 1974)
- Robinson v. Mayme E. Monahan and Paul Hamersmid, 146 So. 2d 397 (Fla. 3d DCA 1962)
- Hanna Iris Rudolph v. Rudolph, 146 So. 2d 397 (Fla. 3d DCA 1962)