Roberts v. Knight

30 Fla. Supp. 192
CourtCircuit Court of the 5th Judicial Circuit of Florida, Lake County
DecidedJune 27, 1968
DocketNo. 18517
StatusPublished

This text of 30 Fla. Supp. 192 (Roberts v. Knight) is published on Counsel Stack Legal Research, covering Circuit Court of the 5th Judicial Circuit of Florida, Lake County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Roberts v. Knight, 30 Fla. Supp. 192 (Fla. Super. Ct. 1968).

Opinion

W. TROY HALL, Jr., Circuit Judge.

This cause came on for hearing on the 31st day of May, 1968, upon a petition filed by plaintiff William E. Roberts, for change of custody of William E. Roberts, Jr., age 7 years; and upon defendant Linda Knight’s cross-petition for increase in child support and for curtailing existing visitation rights of the child’s father, William E. Roberts.

The history of this case, which began with a decree of divorce on June 29, 1962, is amply set out in prior orders of this court, [193]*193particularly in a supplemental final decree dated July 28, 1964. It is sufficient to comment here that the welfare of the young son of the parties, called “Billy”, is the main concern of this court.

The court heard testimony of the parties, and numerous witnesses, including the testimony of “Billy” Roberts, on the questions before the court.

In taking up the question of custody, the court does so with the full knowledge that the resolve of this matter will, in large part, determine the future of this very young boy. Existing conflicts cannot continue, for if they do, the loser is the 7 year old boy.

There is a line of Florida cases dealing with the subject of custody of children. The rules announced through the years can be but competent guidelines, because it is this court’s solemn duty to look to this particular child, and look to the environmental hazards which influence this particular child.

The courts of this land cannot, and should not, take into consideration only the hypothetically perfect environment factors in determining a child’s custodian, for no such perfect environment can be found. If such were true, then courts would reach even into homes that are unbroken, and set forth mandates which would be an intolerable burden on society.

This is not to say that our jurisprudence has not developed experience in dealing with this problem. In short, this judicial experience says — “When called upon by our social order to do so, we must do that which, under the peculiar circumstances of each case, will give the particular child his best opportunity to grow up in the absence of environmental factors which will deter his future physical, moral, spiritual and civic well-being, if such factors are known, and if such factors are within the reach of the court to correct.”

Recognizing the power of the courts to modify custody awards is the case of Davis v. Davis, 196 So. 614 (1940), in which the father petitioned for change of custody of two minor children who had been placed with the mother in the original divorce decree. In holding that the petition alleging that the mother was an improper person to have custody of the minor children was sufficient should the testimony confirm the allegations, the court said —

[194]*194“It is well established that minor children are wards of the court and its responsibility is to make and enter such orders touching the welfare and best interests of the child as from time to time may be necessary. If the welfare of the child and its interests require that the custody should be awarded to another, the court will make such an order or decree as to the interests of the child.”

On the issue of the fitness of a parent to have custody as affected by the moral standards of that parent the court in Blue v. Blue, 66 So.2d 88, said that —

“An important issue in this cause revolved around the welfare and custody of the minor daughter of the parties hereto whose care was awarded by the chancellor to the appellee father. This child is at the tender age of three years and living in a formative state of growth when decisive impressions of life are consciously and unconsciously being implanted within her moral fibers. She deserves that which can be best afforded under the atmosphere conducive to development under sound spiritual and moral teachings. The welfare of the child is paramount against the wishes of the party seeking custody. Quite naturally, the character and moral conduct of the person seeking custody must be probed and ascertained in the fulfillment of this obligation.”

In a case decided in the Lake County Circuit Court in 1954, T. G. Futch, Circuit Judge, the issue was custody of the three minor children of the parties seeking divorce. The children’s ages were 8, 6 and 4. The husband, claiming custody, alleged that his wife had been carrying on an affair with another man, including the reception of that man in their home during his absence and that since the institution of the divorce proceedings his wife and said man had almost constantly cohabited together, particularly at night. The circuit court found that the husband’s allegations were supported by the evidence and accordingly awarded custody to the father, saying —

“This court is not unaware of the harshness of a decree depriving the mother of the custody of her children, but when, as in this case, the conduct of a mother is in utter disregard of the moral surroundings and welfare of the children, there is no other course for this court in good conscience to follow.” Clark v. Clark, 6 Fla. Supp. 90 (1954).

[195]*195Other cases have recognized that by her conduct a mother may demonstrate a moral unfitness to have custody of minor children. In Koones v. Koones, 149 So.2d 88 (Second District, 1963), the court affirmed the awarding of custody of the three minor children of the parties, aged 6, 51/2 and 4 to the father where the court found that the wife was guilty of adultery and was not a fit and proper person to have the care, custody and control of the children. Likewise in Bennett v. Bennett, 146 So.2d, 588 (Second District, 1962), the court affirmed the awarding of custody to the father of the two minor children of the parties. The evidence showed that the wife frequently had dates with other men, staying out with them late at night and that this conduct, after the separation, interfered with her taking care of the children. The court observed that while adultery or marital misconduct in and of itself does not necessarily demonstrate that a parent is unfit to have custody of the children —

“Where there is a history or continued pattern of parental irresponsibility on the part of the mother, the chancellor may be justified in awarding custody of the minor children to their father.”

It must be recognized, however, that in a petition to modify existing custody provisions, a different burden is placed upon the party seeking to change the custody in comparison with the showing required to be made when the issue of custody is first litigated. This difference has been noted in many Florida cases. In Garner v. Garner, 193 So.2d 673 (Second District, 1967), this distinction was clearly stated —

“The chancellor in an original proceeding, confronted with a divorce decree seeking custody of a child is clothed with broad discretion and his decision concerning the custody of the child in the original proceeding will not be disturbed unless grossly and manifestly erroneous, but once this decision is made, it becomes a final decree of the court based upon the facts and circumstances existing as of the time of the decree and is thereafter not to be materially amended or changed unless conditions are shown to have arisen since the decree, and then only for the welfare of the child. Belford v. Belford, 1947, 159 Fla. 547, 32 So.2d 312; Bennett v. Bennett, Fla. 1954, 73 So.2d 274.

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Related

Frye v. Frye
205 So. 2d 310 (District Court of Appeal of Florida, 1967)
Bennett v. Bennett
146 So. 2d 588 (District Court of Appeal of Florida, 1962)
Wilkerson v. Wilkerson
179 So. 2d 592 (District Court of Appeal of Florida, 1965)
Lane v. McFadyen
66 So. 2d 83 (Supreme Court of Alabama, 1953)
Klein v. Klein
204 So. 2d 239 (District Court of Appeal of Florida, 1967)
Ritsi v. Ritsi
160 So. 2d 159 (District Court of Appeal of Florida, 1964)
Bennett v. Bennett
73 So. 2d 274 (Supreme Court of Florida, 1954)
Davis v. Davis
196 So. 614 (Supreme Court of Florida, 1940)
Belford v. Belford
32 So. 2d 312 (Supreme Court of Florida, 1947)
Fields v. Fields
197 So. 530 (Supreme Court of Florida, 1940)
State v. Masino
43 So. 2d 685 (Supreme Court of Louisiana, 1949)
Duggar v. Duggar
143 So. 2d 40 (District Court of Appeal of Florida, 1962)
Koones v. Koones
149 So. 2d 88 (District Court of Appeal of Florida, 1963)
Child v. Child
4 Fla. Supp. 128 (Miami-Dade County Circuit Court, 1953)
Clark v. Clark
6 Fla. Supp. 90 (Lake County Circuit Court, 1954)
Garner v. Garner
193 So. 2d 673 (District Court of Appeal of Florida, 1967)

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Bluebook (online)
30 Fla. Supp. 192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roberts-v-knight-flacirct5lak-1968.