Drake v. Drake

District Court of Appeal of Florida

Drake v. Drake

386 So. 2d 1307, 1980 Fla. App. LEXIS 16973

CourtDistrict Court of Appeal of Florida

DecidedAugust 20, 1980

DocketNo. 79-2264

StatusPublished

Cited by1 cases

This text of 386 So. 2d 1307 (Drake v. Drake) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Drake v. Drake, 386 So. 2d 1307, 1980 Fla. App. LEXIS 16973 (Fla. Ct. App. 1980).

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Opinion

HERSEY, Judge.

The natural mother appeals that portion of a judgment of final dissolution of marriage which awards custody of her minor child to relatives of the husband. It is true that a natural parent has a God-given right to have and enjoy the custody, fellowship and companionship of his or her child. So, too, does the child have rights. On balance, it is the child’s rights which must prevail in child custody cases. Cone v. Cone, 62 So.2d 907 (Fla.1953). The trial court found that the best interests of the child were served by continuing custody in the husband’s relatives. This choice of custodian accords with the principle that where a parent is found to be unfit the court should award custody to a close relative if there is one who is fit, ready, able and willing to be awarded custody. In Interest of W. H., 356 So.2d 34 (Fla. 1st DCA 1978). As for the trial court’s findings on unfitness and related issues, we could not conclude from this record that the trial court acted arbitrarily or abused its discretion. We are therefore admonished by applicable law to presume the correctness of the judgment, Justice v. Van Eepoel, 132 So.2d 407 (Fla.1961). We do so and affirm.

AFFIRMED.

ANSTEAD and GLICKSTEIN, JJ., concur.

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HERSEY, Judge.

The natural mother appeals that portion of a judgment of final dissolution of marriage which awards custody of her minor child to relatives of the husband. It is true that a natural parent has a God-given right to have and enjoy the custody, fellowship and companionship of his or her child. So, too, does the child have rights. On balance, it is the child’s rights which must prevail in child custody cases. Cone v. Cone, 62 So.2d 907 (Fla.1953). The trial court found that the best interests of the child were served by continuing custody in the husband’s relatives. This choice of custodian accords with the principle that where a parent is found to be unfit the court should award custody to a close relative if there is one who is fit, ready, able and willing to be awarded custody. In Interest of W. H., 356 So.2d 34 (Fla. 1st DCA 1978). As for the trial court’s findings on unfitness and related issues, we could not conclude from this record that the trial court acted arbitrarily or abused its discretion. We are therefore admonished by applicable law to presume the correctness of the judgment, Justice v. Van Eepoel, 132 So.2d 407 (Fla.1961). We do so and affirm.

AFFIRMED.

ANSTEAD and GLICKSTEIN, JJ., concur.

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Bluebook (online)

386 So. 2d 1307, 1980 Fla. App. LEXIS 16973, Counsel Stack Legal Research, https://law.counselstack.com/opinion/drake-v-drake-fladistctapp-1980.

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