Elkins v. Vanden Bosch, s. 82-1602
Decision Date | 21 June 1983 |
Docket Number | 82-1821 and 82-1822,Nos. 82-1602,82-1604,s. 82-1602 |
Citation | 433 So.2d 1251 |
Parties | Patricia Ann Vanden Bosch ELKINS, Appellant, v. Jay Henry VANDEN BOSCH, Appellee. |
Court | Florida District Court of Appeals |
Joe N. Unger, Miami, for appellant.
Markus, Winter & Feldman and Sheldon I. Pivnik and Stuart A. Markus, Miami, for appellee.
Before BARKDULL, HUBBART and DANIEL S. PEARSON, JJ.
The order under review ratified and approved the report of a general master which changed the permanent custody of four minor children (triplet sons, age 12; and a daughter, age 15) from the mother to the father. The sole point on appeal is whether the record discloses an abuse of discretion on the part of the court in modifying the prior custody award.
We begin with the proposition that "[a] litigant who seeks to change a custody order carries an extraordinary burden." McGregor v. McGregor, 418 So.2d 1073, 1074 (Fla. 5th DCA 1982). To overcome the res judicata effect of an existing custody order, a party must establish that there has been a material change of circumstances which would warrant a change of custody. Walfish v. Walfish, 383 So.2d 274 (Fla. 3d DCA 1980); Culpepper v. Culpepper, 408 So.2d 782 (Fla. 2d DCA 1982); Stricklin v. Stricklin, 383 So.2d 1183 (Fla. 5th DCA 1980); Garvey v. Garvey, 383 So.2d 1172 (Fla. 2d DCA 1980); Nicholson v. Nicholson, 311 So.2d 676 (Fla. 4th DCA 1975); Wilson v. Condra, 255 So.2d 702 (Fla. 1st DCA 1971). Additionally, a party must show that the welfare of the child will be promoted by the change. Brush v. Brush, 414 So.2d 37 (Fla. 3d DCA 1982); Haines v. Haines, 417 So.2d 819 (Fla. 4th DCA 1982); Culpepper v. Culpepper, 408 So.2d 782; Brown v. Brown, 388 So.2d 623 (Fla. 4th DCA 1980); Stricklin v. Stricklin, 383 So.2d 1183; Nicholson v. Nicholson, 311 So.2d 676.
The question before us is whether the stated preference of the children to be in their father's custody is, standing by itself, a material change of circumstances which will support a custody change. The answer is clearly no.
Even assuming, arguendo, that twelve and fifteen-year-old children possess sufficient intelligence, understanding and experience to make a mature choice between their parents, 3 see Berlin v. Berlin, 386 So.2d 577 (Fla. 3d DCA 1980), rev. denied, 394 So.2d 1151 (Fla.1981) ( ), their stated preference to live with a particular parent, while a factor to be considered and weighed, cannot control the disposition of custody. Garvey v. Garvey, 383 So.2d 1172; Gall v. Gall, 336 So.2d 10 (Fla. 2d DCA 1976). Cf. Goldstein v. Goldstein, 264 So.2d 49 (Fla. 3d DCA 1972). Here there is no finding that the mother is any less fit a parent than she was when given custody of the children in 1977 and no finding that the children will be detrimented if custody is not changed. Cf. In re Gregory, 313 So.2d 735 (Fla.1975) ( ). Indeed, the sole change of circumstances reflected in the report, adopted by the court, is the children's preference. The law does not give children the unfettered discretion to choose the parent with whom they will live, see Gall v. Gall, 336 So.2d 10, or gratify the wishes of children at the expense of the rights of a parent. Wilson v. Condra, 255 So.2d at 703. Were it otherwise, the law would encourage manipulation by both children and parents and foster a breakdown in discipline, neither of which is in the best interests of children.
Accordingly, the order of the trial court adopting the general master's report which changes...
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Sayeh R., Matter of
...reflect the long-term best interest of the children" (id., at 249, 401 N.Y.S.2d 168, 372 N.E.2d 4; see also, Elkins v. Vanden Bosch, 433 So.2d 1251, 1252 [Fla.App. 3d Dist. Ct.App.], review dismissed 438 So.2d 831 [Fla. 1983] ). Such cautions are particularly relevant here where the record ......
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Perez v. Perez, 3D99-2182.
...best interests of the children would be promoted if the wife, who was since remarried, obtained custody of the children"); Elkins v. Vanden Bosch, 433 So.2d 1251, 1253 (modification order reversed where "there is no finding that the mother is any less fit a parent than she was when given cu......
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McIntyre v. McIntyre, AN-449
...child is but one of the statutory factors. Standing alone, this factor does not warrant a modification of custody. Elkins v. Vanden Bosch, 433 So.2d 1251 (Fla. 3rd DCA 1983).4 Cf. Stricklin v. Stricklin, 383 So.2d 1183, 1184 (Fla. 5th DCA 1980), in which the District Court held that the tri......
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Zediker v. Zediker
...extraordinary burden." McGregor v. McGregor, 418 So.2d 1073, 1074 (Fla. 5th DCA 1982) (emphasis supplied). Accord Elkins v. Vanden Bosch, 433 So.2d 1251 (Fla. 3d DCA 1983). See generally Iljazi v. Iljazi, 436 So.2d 326 (Fla. 2d DCA 1983); Stearns v. Szikney, 386 So.2d 592 (Fla. 5th DCA 1980......