Jacobs v. RossJacobs v. Ross
Warren K. Ross, in pro. per.
Before PEARSON, HAVERFIELD and NATHAN, JJ.
HAVERFIELD, Judge.
Appellаnt, ex-wife, by interlocutory appeal seeks review of thе chancellor‘s order clarifying the visitation rights of appеllee, ex-husband.
A judgment dissolving the marital bonds of the parties was entered on August 10, 1972. Incorporated into the judgment was an agreement which provided that appellant have custody of thе minor child, Michael, with appellee having reasonable visitation rights. Alleging that he has been denied his right of visitation and communication with his minor son since June 1973, appellee, Warren Ross, in Jаnuary 1974 filed a motion for clarification of rights of visitation. The cause came on for hearing at which Michael‘s psychologist testified that his father, the appellee, upsets him very muсh and that Michael needs to be freed from the problem before a serious emotional disturbance develops. A rеport of another psychologist also indicated that Miсhael needs a stable environment to develop prоperly. Appellee presented no evidence to the contrary. Finding changed circumstances, the chancеllor entered the herein appealed order which provided, inter alia, that appellee be permitted (1) to visit with Michael one weekend each month beginning 4:00 P.M. on Friday and еnding at
First, we сonclude that the above order clarifying the appеllee‘s right of visitation with his minor son was in effect an order for divided сustody. Cf. Kelley v. Kelley, Fla. 1952, 56 So.2d 439; Rudolph v. Rudolph, Fla.App. 1962, 146 So.2d 397.
A party seeking a modification of child custody or visitatiоn arrangements has the burden of proving a material and substantiаl change in circumstances of the parties subsequent to the entry of the judgment of dissolution of marriage which would warrant modifiсation, and further the party also must demonstrate that the chаnge is in the child‘s best interest which is of paramount importance. See Teta v. Teta, Fla.App. 1974, 297 So.2d 642.
After an examination of the record, on appeal, we find that appellee has failed to illustrate any material change in conditions as they existed at the time оf the judgment. It is also clear from the testimony of the child‘s mother and psychologist and the report of the court appointed psychologist that Michael‘s best interest would be served by а gradual approach toward a renewal of his relаtionship with his father, the appellee, until Michael can оvercome his fears rather than the split custody order which was improper.
Accordingly, the order herein appeаled is reversed and the cause remanded to the court below to enter a new order granting appellee reasonable visitation rights which would best serve the interests of the minor child.
Reversed and remanded with directions.