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August 3, 2007
Case Law Development: Abuse of Discretion in Change of Custody Actions
The Florida Court of Appeals split over whether the trial court had abused its discretion in changing custody from Mother to Father based on Mother's failure to have child vaccinated, her frequent moves, and Father's remarriage and improved home circumstances. The case presents a fascinating window into how difficult it is to separate out financial considerations from the custody determination. Mother had refused to have her child given the chicken pox vaccine, because of her concerns with the vaccine, and the child contracted chicken pox at age 4. Mother also had not taken the child to the doctor as often as Father and had moved six times in four years. Mother claimed that her moves and the fact that she had not taken the child to the doctor as often as Father were due to her financial circumstances. In particular, she argued that she waited for Father to take the child to the doctor because child was insured by Father's wife and Father had refused to give Mother a copy of the insurance card. The majority found Father's remarriage of 2 1/2 years and stable and economically improved home life, along with Mother's moves and neglect of medical appointments, were changed circumstances sufficient to change custody. The dissent found these same circumstances to simply be a choice between the relative financial security of a couple when, "in every other aspect, the parties have an equal capacity and disposition to provide the child with her needs."
San Marco v. San Marco, 2007 Fla. App. LEXIS 11413 (July 25, 2007)
Opinion on line (last visited August 2, 2007 bgf)
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