COURT CASES

Listed below are Custody cases from The Florida Appellet and State Supreme Court as well as U.S. District and Supreme Court Case Law. WE also include The laughably unenforced Judical Canons that govern Florida's Judges

The Cornell Law Website is an excellent Source for the full written opinions

Gerscovich v. Gerscovich, 406 So.2d 1150 (FLA 5 DCA 1981) appears to be the foundation of the courts pro rotational decisions and states; There can be no question that a child benefits from the influence of both a father and a mother in making the varied and at times stressful adjustment imposed by adolescence and its transformation to adulthood. Where circumstances warrant, as here, the best interests of the minor children may well be served by alternating custody between parents �

Sherrod v. Sherrod, 448 So.2d (Fla 1st DCA 1984) After considering all relevant factors of trial court should give the father the same consideration as a mother when determining custody.

Stamm v. Stamm, 489 So.2d 851 (Fla 5th DCA 1986) Parent and child; father who lived in same house for past three years and intended to purchase house on same street for himself and child, who involved child in cultural, religious and athletic activities and who provided stability and continuity proposed a more permanent custodial home�, Best interest of child may not be overridden for one of the parents. After considering all relevant factors, a trial court should give the father the same consideration as mother when determining custody. All factors affecting the best interest and welfare of the child must be considered. Section 61. 13(3), Florida statutes 1985 list 10 factors which the trial court should consider in a value waiting and determining the best interest of the child. It appears from the final judgment dissolving marriage and providing for custody that the trial court did not correctly apply the statutory criteria numerous witnesses testified that while living with the father during the past year the child was extremely well-dressed, well behaved and well-adjusted to her home and educational environment. . . 61. 13(3)h.,Fla Stat (1985). It is well settled that a familiar and orderly environment is preferred and is in the best interest and welfare of the child.. . It appears that the father has proposed a more permanent home. The father has lived in the same house for the past three years and intends to purchase a house further down the street for himself and the child. The child was thriving in the custody of the father and had adjusted to an engaged in cultural, religious, and athletic activities the stability offered by the Father and the desirability of maintaining continuity requires that we remand this case for consideration of those statutory criteria. We recognize and have applied the law governing appellate court review of discretionary rulings.Canakaris v Canakaris, 382 So.2d 1197 (Fla 5th DCA 1980). Gerscovich v Gerscovich, 406 So.2d 1150 (Fla 5th DCA 1981).

Parker v. Parker, 553 So.2d 309 ( Fla. 1st DCA 1989) In a modification order, the court required the parties to share parental responsibility for the children and gave custody to the wife May 1 until Sept. 1 after which the husband was to have custody, with custody to alternate every four months thereafter. �Shifting or rotating custody is presumptively not in the best interest of children�.However the best interest of the children is still the polestar there may be special circumstances in individual cases which may justify rotating physical residence�.

Pfeifer v. Pfeifer, 616 So.2d 1190 (Fla. 4th DCA 1993) We affirm the trial court�s decision to permit each of the parties to have custody of the minor child a portion of each week because of the unique circumstances if this case, and the considerable discretion granted to the trail court on custody issues. . . . . Because both parents have continued to reside in the same neighborhood after the separation, and each has demonstrated their sincere desire to continue a strong and positive relationship with the child, we believe both should be given an opportunity to do so, provided the arrangement does not prove harmful to the child. The trial court made explicit findings that the custody arrangement would minimize the conflicts between the parties while assuring extensive participation by each in the care and nurturing of the child.

Stanley v. Illinois, 406 U.S. 645, 651, 31 L. Ed 2d 551, 92 S. Ct.1208 (1972) The Court stressed that the parent-child relationship "is an important interest that 'undeniably warrants deference and absent a powerful countervailing interest protection.�

Stanton v. Stanton, 421 US 7, 10; 95 LS Ct 1373, 1376, (1975) The United States Supreme Court held that the "old notion" that "generally it is the man's primary responsibility to provide a home and its essentials" can no longer justify a statute that discriminates on the bases of gender. No longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas.

Quillion v. Walcott, 98 S Ct 549, 434 US 246, 255-56, (1978) The U.S. Supreme Court implied that "a (once) married father who is separated or divorced from a mother and is no longer living with his child" could not constitutionally be treated differently from a currently married father living with his child.

Santosky v. Kramer, 102 S Ct 1388; 455 US 745, (1982) Even when blood relationships are strained, parents retain vital interest in preventing irretrievable destruction of their family life; if anything, persons faced with forced dissolution of their parental rights have more critical need for procedural protections than do those resisting state intervention into ongoing family affairs.

Doe v. Irwin, 441 F Supp 1247; US D.C. of Michigan (1985) The rights of parents to the care, custody and nurture of their children is of such character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and such right is a fundamental right protected by this amendment (first) and Amendments 5, 9, and 14.

Troxel v. Granville, 527 U.S. 1069 (1999) Justice O'Conner, speaking for the Court stated, "The Fourteenth Amendment provides that no State shall 'deprive any person of life, liberty, or property, without due process of the law.' We have long recognized that the Amendment's Due Process Clause like its Fifth Amendment counterpart, 'guarantees more than fair process.' The Clause includes a substantive component that 'provides heightened protection against governmental interference with certain fundamental rights and liberty interest" and "the liberty interest of parents in the care , custody, and control of their children-is perhaps the oldest of the fundamental liberty interest recognized by this Court." Justice Thomas concurring in the majority's opinion said, "The opinions of the plurality, Justice Kennedy, and Justice Souter recognize such a right, but curiously none of them articulates the appropriate standard of review. I would apply strict scrutiny to infringements of fundamental rights."

CANON 1 A Judge Shall Uphold the Integrity And Independence of the Judiciary An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective. COMMENTARY Deference to the judgments and rulings of courts depends upon public confidence in the integrity and independence of judges. The integrity and independence of judges depend in turn upon their acting without fear or favor. Although judges should be independent, they must comply with the law, including the provisions of this Code. Public confidence in the impartiality of the judiciary is maintained by the adherence of each judge to this responsibility. Conversely, violation of this Code diminishes public confidence in the judiciary and thereby does injury to the system of government under law.

CANON 2 A Judge Shall Avoid Impropriety and the Appearance of Impropriety in all of the Judge's Activities

COMMENTARY Canon 2A. Irresponsible or improper conduct by judges erodes public confidence in the judiciary. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge's conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. The prohibition against behaving with impropriety or the appearance of impropriety applies to both the professional and personal conduct of a judge. Because it is not practicable to list all prohibited acts, the proscription is necessarily cast in general terms that extend to conduct by judges that is harmful although not specifically mentioned in the Code. Actual improprieties under this standard include violations of law, court rules, or other specific provisions of this Code. The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired. See also Commentary under Section 2C. Canon 2B. Maintaining the prestige of judicial office is essential to a system of government in which the judiciary functions independently of the executive and legislative branches. Respect for the judicial office facilitates the orderly conduct of legitimate judicial functions. Judges should distinguish between proper and improper use of the prestige of office in all of their activities. For example, it would be improper for a judge to allude to his or her judgeship to gain a personal advantage such as deferential treatment when stopped by a police officer for a traffic offense. Similarly, judicial letterhead must not be used for conducting a judge's personal business, although a judge may use judicial letterhead to write character reference letters when such letters are otherwise permitted under this Code. A judge must avoid lending the prestige of judicial office for the advancement of the private interests of others. For example, a judge must not use the judge's judicial position to gain advantage in a civil suit involving a member of the judge's family. In contracts for publication of a judge's writings, a judge should retain control over the advertising to avoid exploitation of the judge's office. As to the acceptance of awards, see Section 5D(5) and Commentary. Although a judge should be sensitive to possible abuse of the prestige of office, a judge may, based on the judge's personal knowledge, serve as a reference or provide a letter of recommendation. However, a judge must not initiate the communication of information to a sentencing judge or a probation or corrections officer but may provide to such persons information for the record in response to a formal request. Judges may participate in the process of judicial selection by cooperating with appointing authorities and screening committees seeking names for consideration, and by responding to official inquiries concerning a person being considered for a judgeship. See also Canon 7 regarding use of a judge's name in political activities. A judge must not testify voluntarily as a character witness because to do so may lend the prestige of the judicial office in support of the party for whom the judge testifies. Moreover, when a judge testifies as a witness, a lawyer who regularly appears before the judge may be placed in the awkward position of cross-examining the judge. A judge may, however, testify when properly summoned. Except in unusual circumstances where the demands of justice require, a judge should discourage a party from requiring the judge to testify as a character witness. Canon 2C. Florida Canon 2C is derived from a recommendation by the American Bar Association and from the United States Senate Committee Resolution, 101st Congress, Second Session, as adopted by the United States Senate Judiciary Committee on August 2, 1990. Membership of a judge in an organization that practices invidious discrimination gives rise to perceptions that the judge's impartiality is impaired. Whether an organization practices invidious discrimination is often a complex question to which judges should be sensitive. The answer cannot be determined from a mere examination of an organization's current membership rolls but rather depends on the history of the organization's selection of members and other relevant factors, such as that the organization is dedicated to the preservation of religious, ethnic, or cultural values of legitimate common interest to its members, or that it is in fact and effect an intimate, purely private organization whose membership limitations could not be constitutionally prohibited. See New York State Club Ass'n Inc. v. City of New York, 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988); Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537, 107 S.Ct. 1940, 95 L.Ed.2d 474 (1987); Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). Other relevant factors include the size and nature of the organization and the diversity of persons in the locale who might reasonably be considered potential members. Thus the mere absence of diverse membership does not by itself demonstrate a violation unless reasonable persons with knowledge of all the relevant circumstances would expect that the membership would be diverse in the absence of invidious discrimination. Absent such factors, an organization is generally said to discriminate invidiously if it arbitrarily excludes from membership on the basis of race, religion, sex, or national origin persons who would otherwise be admitted to membership. This Canon is not intended to prohibit membership in religious and ethnic clubs, such as Knights of Columbus, Masons, B'nai B'rith, and Sons of Italy; civic organizations, such as Rotary, Kiwanis, and The Junior League; young people's organizations, such as Boy Scouts, Girl Scouts, Boy's Clubs, and Girl's Clubs; and charitable organizations, such as United Way and Red Cross. Although Section 2C relates only to membership in organizations that invidiously discriminate on the basis of race, sex, religion or national origin, a judge's membership in an organization that engages in any discriminatory membership practices prohibited by the law of the jurisdiction also violates Canon 2 and Section 2A and gives the appearance of impropriety. In addition, it would be a violation of Canon 2 and Section 2A for a judge to arrange a meeting at a club that the judge knows practices invidious discrimination on the basis of race, sex, religion or national origin in its membership or other policies, or for the judge to regularly use such a club. Moreover, public manifestation by a judge of the judge's knowing approval of invidious discrimination on any basis gives the appearance of impropriety under Canon 2 and diminishes public confidence in the integrity and impartiality of the judiciary, in violation of Section 2A. When a person who is a judge on the date this Code becomes effective learns that an organization to which the judge belongs engages in invidious discrimination that would preclude membership under Section 2C or under Canon 2 and Section 2A, the judge is permitted, in lieu of resigning, to make immediate efforts to have the organization discontinue its invidiously discriminatory practices, but is required to suspend participation in any other activities of the organization. If the organization fails to discontinue its invidiously discriminatory practices as promptly as possible (and in all events within a year of the judge's first learning of the practices), the judge is required to resign immediately from the organization.

CANON 3 A Judge Shall Perform the Duties of Judicial Office Impartially and Diligently