McCoy v. McCoy

HERSEY, Judge.

Appellant, mother, originally having custody of her minor son and daughter, appeals a final judgment which awarded custody of the minor daughter to the father. The father made no attempt to obtain custody until appellant sought child support. At the time of the final hearing on the petition for custody each child was at least temporarily residing with the respective custodians, the daughter with her father in Florida and the son with his mother in Pennsylvania. The record discloses that both children now live in Pennsylvania with the mother.

We have not been favored with an appearance on behalf of the father appellee.

We determine that there is not sufficient evidence on this record to sustain a change of custody nor to support the split custody award, based upon the policy stated in Scalzo v. Scalzo, 395 So.2d 1272 (Fla. 4th DCA 1981) and enunciated by our supreme court in Arons v. Arons, 94 So.2d 849 (Fla.1957). The custody of both children should have been awarded to the mother.

Accordingly we reverse the final judgment and remand with instructions to enter a judgment awarding permanent custody of the minor children to appellant. The judgment shall be without prejudice to appel-lee’s right to petition the court for reasonable visitation privileges if he is so inclined.

REVERSED AND REMANDED WITH INSTRUCTIONS.

BERANEK, J., and SCHWARTZ, ALAN R., Associate Judge, concur.