CAN A CHILD CHOOSE WHICH PARENT SHOULD HAVE CUSTODY IN FLORIDA?

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A Child Custody and Visitation case involving a child’s custody preference was recently decided by the Florida Court of Appeal. In a case captioned Talarico v. Talarico, the mother and father had two children. The parties divorced and negotiated parenting plans. Several years later, the father sought a modification of child custody and visitation, which the trial court granted. The Florida Court of Appeals reversed the trial court’s decision to grant this modification.

The Florida Court of Appeal stated that in order to grant a modification of child custody, the moving party must prove that a material, substantial and unanticipated change of circumstances occurred which warrants the modification. This change of circumstances must adversely affect the children’s welfare. One of the factors that the trial court is permitted to consider in reaching a custody decision is a child’s reasonable preference. In order to consider a child’s custody preference, the trial court must find that the child has sufficient experience, understanding and intelligence to express a preference. The Court of Appeal stated that trial courts ordinarily do not desire to have children testify in court against one of their parents. In the event that a trial court decides to permit such testimony, the preferred method to obtain such testimony is by an interview conducted by the trial judge outside of the presence of the parents. These interviews are either recorded (unless otherwise agreed to by the parties), or the judge provides a summary of the interviews.

In this case, the Florida Court of Appeal ruled that the absence of a recording or a summary of the children’s interviews with the trial court constituted a violation of the mother’s Due Process rights under the United States Constitution. Therefore the Florida Court of Appeal reversed the trial court’s determination and remanded the case back to the trial court for another hearing.

To speak with a child custody and visitation attorney in Palm Beach Gardens, contact the Lane Law Firm, P.A. at (561) 363-3400.