Howard v. Howard

• Decision Date: 08 March 1972
• Docket Number: No. 71-6,71-6
• Citation: Howard v. Howard, 259 So.2d 188 (Fla. App. 1972)
• Parties: Monika Erni HOWARD, Appellant, v. Jerry Wendall HOWARD, Appellee.
• Court: Florida District Court of Appeals

Page 188

259 So.2d 188

Monika Erni HOWARD, Appellant, v.Jerry Wendall HOWARD, Appellee.

No. 71-6.

District Court of Appeal of Florida, Second District.

March 8, 1972.

Rehearing Denied April 4, 1972.

R. Lawrence DeFrances, Sarasota, for appellant.

Strayhorn & Strayhorn and George O. Kluttz, Ft. Myers, for appellee.

LILES, Judge.

Appellant wife and appellee husband were married to each other in Germany in December of 1967.Appellee was a member of the United States Army at that time, and appellant was and still is a German citizen.Shortly thereafter, the parties began residing in New Jersey when appellee was transferred to Ft. Dix.In June of 1970, the appellee brought their eighteen month old son to Florida-- his legal residence--and began divorce proceedings in Hendry County.In September the wife filed her answer and counterclaim for divorce.The circuit court awarded a divorce to the wife and reserved jurisdiction to determine permanent custody of the minor child by continuing the child as a ward of the court with the paternal grandparents as temporary custodians.The court noted it felt that neither party had the requisite stability to properly provide for the child and said it would consider a petition for permanent custody from the wife at the time she obtained United States Citizenship and from the husband at the time he was either discharged from the Army or had acquired another family within the military.Neither party contests the awarding of the divorce, but the wife appeals that portion of the decree awarding temporary custody of the minor child to the grandparents.

It is well-established law in Florida that--absent other considerations--natural parents are to be preferred over other relatives and third persons in the custody of minor children.Grant v. Corbitt, Fla.1957, 95 So.2d 25;Kersey v. State, Fla.App.1960, 124 So.2d 726;Foster v. Sharpe, Fla.App.1959, 114 So.2d 373;Modacsi v. Taylor, Fla.App.1958, 104 So.2d 664.

In the instant casethe circuit court has denied both parents the right to petition for the custody of their child until certain pre-conditions have been met.We find that those conditions have no bearing on the issue of parental fitness and that the welfare of the minor child dictates that the question of permanent custody be settled as expeditiously as possible.Several years could conceivably elapse before either parent could satisfy the conditions precedent imposed by the court.During this time the child will have been living in the home of his paternal grandparents and will have formed certain bonds of affection for them.To uproot him from this environment at the time the natural parents are able to petition the court for permanent custody would be injurious to the child's welfare.

It is also well-established law in Florida that--other things being equal--the welfare of a minor child is best served by awarding custody to the mother.Fields v Fields, 1940, 143 Fla. 886, 197 So. 530;Green v. Green, 1939, 137 Fla. 359, 188...