DARRELL G. DINKEL, APPELLANT,
v.
LINDA A. DINKEL, APPELLEE

Fla. 1st DCA | 1974-10-03
No. U-128
SPECTOR, Acting C. J., and McCORD, J., concur.
305 So. 2d 90 Florida District Court of Appeal, First District (1974) Negative Treatment
Cited by 14 cases

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.

Synopsis

In a dissolution proceeding, the trial court awarded custody of the parties' three-year-old child to the mother, but the appellate court reversed, holding that the mother's admitted adultery committed in the child's presence rendered her unfit for custody and that the father, who demonstrated equal parental involvement and capability, should be awarded custody.


Holding

The court reversed and held that custody must be awarded to the father. Although adultery alone does not render a parent unfit, adultery committed in the presence of the child under these circumstances constitutes very unusual circumstances requiring a finding that the adulterous parent is unfit. Since the father demonstrated equal parental involvement and capability, and the best interest of the child standard applies, custody should be awarded to the father.


Headnotes

[1] Adultery committed in the presence of a minor child may render a parent unfit for custody, even if adultery alone would not.

[2] The best interest of the child is the paramount consideration in child custody determinations.

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Key Quotes

“Although our Supreme Court has repeatedly held that adultery alone does not render a parent unfit, very unusual circumstances would be required in order to justify a finding that it would be for the best interest of a minor child to be placed in the custody of such an adulterous parent who commits the adultery in the presence of the child.”

Establishes the legal standard that while adultery alone is not disqualifying, committing adultery in the child's presence constitutes very unusual circumstances warranting a finding of unfitness.

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Facts & Procedural History

The parties' marriage was irretrievably broken and the wife instituted dissolution proceedings. The couple had a three-year-old son, Jeffrey John Dink…

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Opinion of the Court
BOYER, Judge.

BOYER, Judge.

By this-appeal appellant seeks review of an adverse ruling in the Circuit Court in a custody matter emanating from a dissolution proceeding. The wife instituted the proceeding and respondent answered, admitting that the marriage was irretrievably broken, counter-claiming for custody of the three year old child of the parties/ Jeffrey John Dinkel. All property matters were resolved by stipulation, leaving child custody as the issue to be resolved. The trial court resolved that issue in favor of the wife mother. We reverse.

The appellee blatantly admitted, almost bragged, that she repeatedly had sexual intercourse with a man to whom she was not married, while she was yet married to appellant and while the subject child was present. Under such circumstances she cannot be said to be a fit and proper custodian of the child. Although our Supreme Court has repeatedly held that adultery alone does not render a parent unfit, very unusual circumstances would be required in order to justify a finding that it would be for the best inter est of a minor child to be placed in the custody of such an adulterous parent who commits the adultery in the presence of the child. Certainly such unusual circumstances do not exist in the case sub judice. A female parent who commits adultery in the presence of her child can hardly be called a “mother” in the traditional American sense.

The best interest of the child is the polestar of our law of custody as between competing parents. (Brust v. Brust, Fla.App. 1st 1972, 266 So. 2d 400; Green v. Green, Fla.App. 1st 1971, 254 So. 2d 860) In the case sub judice the child’s father, appellant here, was demonstrated to be a capable, devoted, attentive and fit parent. He has changed as many diapers, served as many meals and given as many baths as has appellee. The statutory law of Florida specifically provides that the father of a child shall be given the same consideration as the mother in determining custody. (F.S. 61.13(2))

In Brust v. Brust, supra, we said:

“ * * * Appellee is a loving father and spends a great deal of time with his boys; the father oftentimes bathes, dresses and feeds the boys and puts them to bed; * * *

‘ * * * The defendant, their father, has displayed a greater degree of interest in the rearing of his sons than fathers generally do, and has participated personally in their physical care to a greater extent than fathers are wont to participate, manifestly enjoying the function of being a father. He has a knack for combining love for his children with a proper degree of necessary discipline. Both the mother and the father work outside the home for pay. The father has developed a concrete and workable plan for the supervision and care of the children during the several hours each school day after school lets out before he arrives home to take care of them himself * * * ’ ” (266 So. 2d at page 401)

The above quote fits like a glove the facts in the case sub judice. Further, appellant has arranged for a working schedule which will permit him to continue to be a father in every sense of the word and a proper custodian of his child.

Reversed and remanded with directions that the final judgment be modified by awarding custody of the minor child of the parties to appellant.

Appellee has filed herein a motion for attorney’s fees. That motion is denied.

SPECTOR, Acting C. J., and McCORD, J., concur.


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Citator

Cited By

  • Dinkel v. Dinkel, 322 So. 2d 22 (Fla. 1975)
    …ADKINS, Chief Justice. Upon petition for certiorari to review the opinion of the District Court of Appeal, First District, at 305 So. 2d 90 (1974), conflict appears with the myriad cases setting forth the rule that in the absence of a clear showing of abuse of discretion, the decision of the trial judge in a child custody case will not be reversed. Grant v. Corbitt, 95 So. 2d 25 (Fla.19…
  • Maradie v. Maradie, 680 So. 2d 538 (Fla. 1st DCA 1996)
    …[ujnder the circumstances she [the mother] cannot be said to be a fit and proper custodian of the child” and “a female parent who commits adultery in the presence of her child can hardly be called ‘mother’ in the traditional American sense.” Dinkel, 305 So. 2d 90, 91-92 (Fla. 1st DCA 1974). The supreme court quashed this court’s decision and reinstated the award of custody to the mother, reasoning that “[t]he moral unfitness of a mother must be such as has a direct bearing on the welfare of the child, if it…
  • McKENNON v. McKENNON, 312 So. 2d 804 (Fla. 1st DCA 1975)
    …udgment attorney’s fees. In child custody proceedings the best interests of the child is the pole star of the law. (Brust v. Brust, Fla.App. 1st 1972, 266 So. 2d 400, cert. den. Sup.Ct.Fla. 1972, 271 So. 2d 142; Dinkel v. Dinkel, Fla.App. 1st 1974, 305 So. 2d 90; Green v. Green, Fla.App. 1st 1971, 254 So. 2d 860) The broad discretion of the trial judge in such matters will not be disturbed on appeal in the absence of a showing of an abuse of that discretion. Although we do not condone the conduct of appelle…

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