Daugharty v. Daugharty, 89-2441

• Decision Date: 13 December 1990
• Docket Number: No. 89-2441,89-2441
• Citation: Daugharty v. Daugharty, 571 So.2d 85 (Fla. App. 1990)
• Parties: 15 Fla. L. Weekly D2991 Janice L. DAUGHARTY, Appellant, v. James E. DAUGHARTY and Barbara Daugharty, Appellees.
• Court: Florida District Court of Appeals

Page 85

571 So.2d 85

15 Fla. L. Weekly D2991

Janice L. DAUGHARTY, Appellant, v.James E. DAUGHARTY and Barbara Daugharty, Appellees.

No. 89-2441.

District Court of Appeal of Florida Fifth District.

Dec. 13, 1990.

Garrett L. Briggs of Adams & Briggs, Daytona Beach, for appellant.

No Appearance for appelleeJames E. Daugharty.

Fred W. Fendt, DeLand, for appelleeBarbara Daugharty.

PETERSON, Judge.

Janice L. Daugharty appeals that portion of a final judgment that places her two children in the custody of the children's paternal grandmother, Barbara Daugharty.We vacate a portion of the final judgment and remand.

The trial court made a specific finding in paragraph two of its final judgment that it was in the best interests of the minor children that they be placed in the custody of the paternal grandmother and that the latter was a fit and proper custodian.The court then ordered that the paternal grandmother would have the sole care, custody and control of the children subject to liberal visitation privileges by the natural mother and father.

The concern we have in this case is whether the proper legal standard was applied by the trial court to arrive at the decision to award custody to a non-parent.The stated finding that the best interests of the children would be served by awarding custody to the grandmother implies that the "best interest" standard was applied.The best interest standard is applied in a dispute between two parents where both are fit and have equal rights to custody.Guardianship of D.A. McW., 460 So.2d 368(Fla.1984).In the instant case, where the custody dispute is between the parents and a third person, the rights of the parents are paramount unless there is a showing that the parents are unfit or that, for some substantial reason, custody in either or both of the parents would be detrimental to the child's welfare.Cherry v. Cherry, 508 So.2d 782(Fla. 5th DCA1987);Pape v. Pape, 444 So.2d 1058(Fla. 1st DCA1984);Johnson v. Richardson, 434 So.2d 972(Fla. 5th DCA1983);Besade v. Besade, 312 So.2d 484(Fla. 3d DCA1975).While the correct standard may have been applied in the instant case, nothing in the record allows us to confirm it.

We vacate paragraphs two and three of the judgment indicating that the paternal grandmother shall have the sole care, custody, and control of the minor children and that the parents shall have liberal visitation privileges.We remand this cause to the trial court and direct that h...