Sinclair v. Sinclair

804 So. 2d 589, 2002 WL 63408
CourtDistrict Court of Appeal of Florida
DecidedJanuary 18, 2002
Docket2D00-1307
StatusPublished
Cited by17 cases

This text of 804 So. 2d 589 (Sinclair v. Sinclair) 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
Sinclair v. Sinclair, 804 So. 2d 589, 2002 WL 63408 (Fla. Ct. App. 2002).

Opinion

804 So.2d 589 (2002)

Tina SINCLAIR, Appellant,
v.
Dale SINCLAIR and Anita Mallette, Appellees.

No. 2D00-1307.

District Court of Appeal of Florida, Second District.

January 18, 2002.

*591 Thomas S. Hudson, Sarasota, and Gerald F. O'Brien, Sarasota, for Appellant.

Peter S. Baranowicz of Deciantis, Baranowicz & Calderon, P.A., Venice, for Appellees.

Stephen R. Scarborough, Atlanta, Georgia, for Amicus Curiae Lambda Legal Defense and Ed. Fund, Inc.

SILBERMAN, Judge.

Tina Sinclair appeals from a final judgment denying her supplemental petition for primary residential custody of her three children. Because the existing custody arrangement is in the best interests of the children and a change in residential custody would be detrimental to them, we affirm.

Tina Sinclair (the Mother) and Dale Sinclair (the Father) were married in 1986. They had three sons, born in 1986, 1989, and 1990. The Mother relocated to West Palm Beach in 1991, and she has continued to live there with her same-sex partner. Since 1991, the children have resided with the Father and Anita Mallette (the paternal Grandmother) in Sarasota County, Florida.

In 1997, the Sinclairs were divorced. The final judgment of dissolution provided that they would have shared parental responsibility of their three children with the Father serving as the primary residential parent.

In September 1998, the Mother sought, on an emergency basis, full custody of the children. She alleged that the Father had been arrested for criminal charges and was being held in jail. She also filed a supplemental petition for modification of parental responsibility and requested sole parental responsibility for the children.

The Grandmother moved to intervene pursuant to section 61.13(7), Florida Statutes (Supp.1998). She alleged that the best interests of the children would be fulfilled by maintaining the status quo, that is, leaving the children in her custody. The trial court allowed the Grandmother to intervene and denied emergency relief to the Mother. In its order, the trial court determined that no emergency existed and that it would not be in the best interests of the children to change their environment on an emergency basis.

The Father and the Grandmother responded to the Mother's supplemental petition and denied the pertinent allegations as to the Mother's obtaining sole parental responsibility. The Grandmother filed a counter-petition for custody of the children. She alleged that the Mother and Father separated in 1991 and that the children had resided with her since that time. She asserted that the children had thrived in her care; that she was the psychological parent of the children; that the children were approximately five years old, two years old, and nine months old when they moved in with her; and that the children had little contact with the Mother due to the Mother's lack of interest.

The evidence at trial addressed the best interests of the children and the impact a change in residential custody would have on them. Evidence was also presented regarding the Mother and her relationship with her significant other, as well as their interactions with the children. Additionally, *592 the trial court heard expert testimony and had before it the report of the guardian ad litem.

The Mother had very limited contact with the children since 1991. After the current proceedings were commenced, her telephone contact was once or twice per month and her visitation consisted of Thanksgiving, Christmas, and a summer visit. The Mother failed to pay her child support obligations and had been in arrears for years.

The trial court concluded that there was very little bond between the Mother and the children and little evidence as to the Mother's providing care for the children. The trial court found that the children had a close and strong bond with the Grandmother and that they considered her to be their psychological parent. The Grandmother provided the children with food, clothing, medical care, and otherwise met their physical, mental, and emotional needs. The children had lived in the same home, had attended local schools, and had the same care providers for over eight years. The children were well-adjusted and happy in their community and environment.

The trial court considered problems and concerns relating to the possible change of residential custody. These included the childrens' anger, confusion, and fear about changing schools and homes, the living arrangements of the Mother, and the problems that the children encountered when staying with the Mother. The trial court also weighed the evidence as to the childrens' preferences and concluded that the two younger children strongly preferred to remain with the Grandmother while the older child had not expressed a preference.

The record reflects that while the Father generally resided with the children in the Grandmother's home, during certain periods the Father lived elsewhere while the children remained with the Grandmother. The trial court determined that from 1991, when the parents separated, until the time of trial, the children had a stable environment in the Grandmother's home.

In entering judgment, the trial court concluded that it would be in the best interests of the children for them to remain in the custodial care of the Grandmother and that a change in custodial care would be detrimental to the children. Although the trial court agreed that the Mother would continue to have visitation rights, it denied the Mother's petition for a change in residential custody.

In this appeal, the Mother asserts several issues: (1) she should have obtained residential custody of her children because she is their natural mother, and the Father, who had residential custody, had been incarcerated; (2) the Grandmother did not have standing in these proceedings; (3) an expert witness should not have been permitted to testify regarding statements made by the children; (4) the trial court applied the wrong legal standards; and (5) the trial court improperly took judicial notice as to certain matters. We affirm on all points but write to address the applicable legal standards and the issue of standing.

In her brief, the Mother disputes several of the trial court's factual findings. Our review reveals that there is competent, substantial evidence supporting the findings made by the trial court. The trial court is in the best position to weigh the evidence and to determine the credibility of the witnesses, and it is not for this court to re-weigh the evidence or to substitute its judgment for that of the trial court. In re Adoption of Baby E.A.W., 658 So.2d 961, 967 (Fla.1995).

*593 The Mother next argues that the Florida Supreme Court decision in Richardson v. Richardson, 766 So.2d 1036 (Fla. 2000), mandates reversal. At the time of trial, Richardson had not yet been decided. The supreme court held "that section 61.13(7), Florida Statutes (1999), is facially unconstitutional in vesting custody rights in others because it violates a natural parent's fundamental right to rear his or her child." Richardson, 766 So.2d at 1037. The Mother suggests that in light of Richardson, she had the absolute right to immediate custody of the children and that the Grandmother had no standing to contest the Mother's right to custody.

The Mother's argument ignores several facts. She had little contact with the children since 1991 when the youngest child was nine months old, the middle child was two years old, and the oldest child was five years old.

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Cite This Page — Counsel Stack

Bluebook (online)
804 So. 2d 589, 2002 WL 63408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sinclair-v-sinclair-fladistctapp-2002.