Sherman v. Sherman
| Decision Date | 13 March 1990 |
| Docket Number | No. 89-1918,89-1918 |
| Citation | 558 So.2d 149 |
| Parties | 15 Fla. L. Weekly D698 Stacy SHERMAN, Appellant, v. Robert SHERMAN, Appellee. |
| Court | Florida District Court of Appeals |
Greene and Greene, and Cynthia L. Greene, Miami, for appellant.
Mark A. Cullen, West Palm Beach, for appellee.
Before BARKDULL, FERGUSON and JORGENSON, JJ.
This appeal challenges a final order transferring residential custody of a minor child from a mother residing in California to the father who resides in Florida.
The judgment dissolving the parties' marriage awarded custody of the infant child to the mother, the appellant Stacy Sherman, and prohibited her from moving out of the jurisdiction without permission of the court. The final judgment also required the father, Robert Sherman, to pay Stacy $80 per week for child support. Stacy's meager earnings of $200 per week along with Robert's frequent delinquency in making child-support payments allegedly created constant financial difficulties for Stacy.
Subsequently, Stacy married a successful businessman who accepted a lucrative offer for employment in California. Stacy also received an offer for a job in California paying more than twice the salary she earned in Miami.
Stacy filed a petition in the Florida court seeking permission to move to California with the child. Robert filed a petition to prevent the move. The court permitted Stacy to travel between Florida and California, with the child, pending a hearing on the petitions. Eight months later, prior to a hearing on the petitions, Robert Sherman amended his petition, seeking an increase in visitation time or, alternatively, a change in residential custody.
At trial the mother testified that she was amenable to any type of visitation plan. She presented a plan for the child to visit with the father all holidays, summer vacations, during the father's vacations if different from summer vacations, and time with the child every ten-to-twelve weeks. Stacy offered to pay for all travel expenses associated with the visitations.
An expert for the mother testified that Stacy's motives to relocate were sincere and that the move was in the child's best interest. The father's expert had no opinion whether Stacy or Robert would make the best residential parent but did opine that the child's relocation would inhibit father-son bonding. Robert questioned Stacy's motivation to move, contending that it was an attempt to defeat his visitation rights, and that she had interfered with visitation and had failed to consult him on important issues concerning the child's development.
The trial court found that Stacy's motivation to relocate was legitimate and that she had a sincere desire to be with her husband and to improve her economic situation. He further found that Stacy is an excellent mother. The court concluded, however, that Stacy did not fully understand the child's need for a close relationship with his father, that she had frustrated visitation on prior occasions, and that the move to California would inhibit father-son bonding. Concluding that a court should be loathe to interfere with a pattern of weekend visitation, the judge determined that it was in the child's best interest to deny the mother's request to move. In granting the father's alternative request for a change in custody, the court found that the mother's relocation to California, under the circumstances, constituted a material and substantial change. We reverse.
It was the father's extraordinary burden to prove, on his petition for a change in custody, not only that a substantial and material change in circumstances had occurred since the marriage dissolution, but also that the welfare of the child would be promoted by the change in custody. Bennett v. Bennett, 73 So.2d 274 (Fla.1954); Hood v. Hood, 479 So.2d 269 (Fla. 1st DCA 1985). The law is well established that a custodial parent's move to another state does not...
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