Dinkel v. Dinkel, 322 So. 2d 22 (Fla. 1975). · Go Syfert
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Dinkel v. Dinkel, 322 So. 2d 22 (Fla. 1975). Cases Citing This Book View Copy Cite
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cited 2× by 2 distinct cases, last quoted 2004 · …other essential factors being equal, the mother of the infant of tender years should receive prime consideration for custody. at p. 24 ✓
154 citation events (10 in the last 25 years) across 5 distinct courts.
Strongest positive: Jones v. Jones (fladistctapp, 1994-02-11)
Treatment trajectory · 1975 → 2026 · click a year to view as-of
1975 2000 2026
Top citers, strongest first. 45 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Jones v. Jones
Fla. Dist. Ct. App. · 1994 · quote attribution · 1 verbatim quote · confidence high
abuse of discretion ... requires a lack of substantial competent evidence to sustain the findings of the trial judge
cited Cited as authority (rule) McKinnon v. Staats
Fla. Dist. Ct. App. · 2005 · confidence medium
Dinkel v. Dinkel, 322 So.2d 22, 24 (Fla. 1975).
cited Cited as authority (rule) Johnson v. Adair
Fla. Dist. Ct. App. · 2004 · confidence medium
Under the doctrine, with "other essential factors being equal, the mother of the infant of tender years should receive prime consideration for custody." Dinkel v. Dinkel, 322 So.2d 22, 24 (Fla.1975).
cited Cited as authority (rule) Lowrey v. Lee
Fla. Dist. Ct. App. · 2004 · confidence medium
Dinkel v. Dinkel, 322 So.2d 22, 24 (Fla.1975).
discussed Cited as authority (rule) Young v. Hector
Fla. Dist. Ct. App. · 1999 · confidence medium
See Canakaris, 382 So.2d at 1203 ; Dinkel v. Dinkel, 322 So.2d 22, 24 (Fla.1975); Bader v. Bader, 639 So.2d 122, 124 (Fla. 2d DCA 1994) (en banc); Jones v. Jones, 633 So.2d 1096, 1099 (Fla. 5th DCA 1994); Ross v. Ross, 321 So.2d 443, 444 (Fla. 3d DCA 1975).
discussed Cited as authority (rule) Anderson v. Anderson (2×) also: Cited "see"
Fla. Dist. Ct. App. · 1999 · confidence medium
NOTES [1] This "what the child can't see can't harm him" principle of domestic law perhaps started with Dinkel v. Dinkel, 322 So.2d 22, 23-24 (Fla.1975), which held in a case in which a parent had committed adultery in the home but not in the presence of the child: Adultery may or may not have a direct bearing on the welfare of a child of tender years.
discussed Cited as authority (rule) Ward v. Dibble (2×) also: Cited "see"
Fla. Dist. Ct. App. · 1996 · confidence medium
Because determinations of a child's "best interests" are properly left to the sound discretion of a trial judge, see Dinkel v. Dinkel, 322 So.2d 22, 24 (Fla.1975); Pridgeon v. Pridgeon, 632 So.2d 257, 261 (Fla. 1st DCA 1994), the lower court's "best interests" decision must be affirmed unless this court finds the determination to be unsupported by substantial, competent evidence.
examined Cited as authority (rule) Ward v. Ward (3×) also: Cited "see"
Fla. Dist. Ct. App. · 1996 · confidence medium
Dinkel v. Dinkel, 322 So.2d 22, 23-24 (Fla.1975)("moral unfitness" of a custodial parent must have direct bearing on welfare of the child to be the basis for depriving the parent of the custody of the child); Maradie, supra, 680 So.2d at 542 .
discussed Cited as authority (rule) Adamson v. Chavis
Fla. Dist. Ct. App. · 1996 · confidence medium
E.g., Dinkel v. Dinkel, 322 So.2d 22, 24 (Fla.1975) (notwithstanding section 61.13(2), mandating "equal consideration of the spouses in the award of custody, it is still the law in this State that, other essential factors being equal, the mother of the infant of tender years should receive prime consideration for custody").
cited Cited as authority (rule) Fabre v. Levine
Fla. Dist. Ct. App. · 1993 · confidence medium
Dinkel v. Dinkel, 322 So.2d 22, 24 (Fla. 1975); Parker v. Parker, 519 So.2d 673, 675 (Fla. 1st DCA), review dismissed, 531 So.2d 1354 (Fla. 1988); McIntyre, 452 So.2d at 20 .
discussed Cited as authority (rule) Whitney v. Whitney
Fla. Dist. Ct. App. · 1981 · confidence medium
As the supreme court said in Dinkel v. Dinkel, 322 So.2d 22, 24 (Fla.1975): It is the function of the trial judge in a child custody proceeding to determine what is in the best interests of the child.
discussed Cited as authority (rule) Kershner v. Crocker
Fla. Dist. Ct. App. · 1981 · confidence medium
In Anderson v. Anderson, 309 So.2d 1 (Fla. 1975), the Florida Supreme Court announced that this statutory mandate of equal consideration is not inconsistent with the "tender years presumption." Rather, it was still the law in Florida that "other essential factors being equal, *127 the mother of the infant of tender years should receive prime consideration for custody." Dinkel v. Dinkel, 322 So.2d 22, 24 (Fla. 1975).
cited Cited as authority (rule) Smith v. Smith
Fla. Dist. Ct. App. · 1981 · confidence medium
Cf. Hackley v. Hackley, 380 So.2d 446 (Fla.5th DCA 1979); Dinkel v. Dinkel, 322 So.2d 22, 23-24 (Fla. 1975).
cited Cited as authority (rule) Montgomery County Department of Social Services v. Sanders
Md. Ct. Spec. App. · 1978 · confidence medium
(Citations omitted.) Accord, Dinkel v. Dinkel, 322 So. 2d 22, 23 (Fla. 1975).
discussed Cited as authority (rule) Davis v. Davis (2×) also: Cited "see, e.g."
Md. · 1977 · confidence medium
See, e.g., Pontorno v. Pontorno, 257 Md. 576, 581 , 263 A.2d 820, 822 (1970); Neuwiller v. Neuwiller, 257 Md. 285, 287 , 262 A.2d 736, 737 (1970); Kauten v. Kauten, supra, 257 Md. at 13, 261 A.2d at 761 ; Wood v. Wood, 227 Md. 112, 115 , 175 A.2d 573 , 575 (1961); Oliver v. Oliver, 217 Md. 222, 230 , 140 A.2d 908, 912 (1958); cf. Dorsett v. Dorsett, 281 A.2d 290, 292 (D.C. 1971) (great deference accorded trial judge in child custody cases; no abuse of discretion found); Dinkel v. Dinkel, 322 So.2d 22, 24 (Fla. 1975) (custody determination not reversible except on showing of abuse of discretion…
discussed Cited as authority (rule) Davis v. Davis (2×) also: Cited "see, e.g."
Md. · 1977 · confidence medium
See, e.g., Pontorno v. Pontorno, 257 Md. 576, 581 , 263 A. 2d 820, 822 (1970); Neuwiller v. Neuwiller, 257 Md. 285, 287 , 262 A. 2d 736, 737 (1970); Kauten v. Kauten, supra, 257 Md. at 13, 261 A. 2d at 761 ; Wood v. Wood, 227 Md. 112, 115 , 175 A. 2d 573 , 575 (1961); Oliver v. Oliver, 217 Md. 222, 230 , 140 A. 2d 908, 912 (1958); cf. Dorsett v, Dorsett, 281 A. 2d 290, 292 (D.C. 1971) (great deference accorded trial judge in child custody cases; no abuse of discretion found); Dinkel v. Dinkel, 322 So. 2d 22, 24 (Fla. 1975) (custody determination not reversible except on showing of abuse of dis…
cited Cited as authority (rule) Dwyer v. Dwyer
Fla. Dist. Ct. App. · 1976 · confidence medium
Such a finding, or the absence thereof would appear to be important in the light of Finn v. Finn, Sup.Ct.Fla. 1975, 312 So.2d 726 and Dinkel v. Dinkel, Sup.Ct.Fla. 1975, 322 So.2d 22 .
cited Cited "see" Smith v. Smith
Fla. Dist. Ct. App. · 2010 · signal: see · confidence high
See Dinkel v. Dinkel, 322 So.2d 22, 24 (Fla.1975); Willis, 818 So.2d at 533 .
discussed Cited "see" Hughes v. Hughes
Fla. Dist. Ct. App. · 2007 · signal: see · confidence high
See Dinkel v. Dinkel, 322 So.2d 22, 23 (Fla.1975) (quashing the district court's opinion and remanding with directions to reinstate that part of the dissolution decree awarding primary residential custody of the child to the adulterous former wife, where no competent substantial evidence indicated the adulterous conduct had any direct bearing on the child's welfare, and competent substantial evidence supported the trial court's conclusion that awarding custody to the former wife was in the child's best interest); Burger v. Burger, 862 So.2d 828, 832-33 (Fla. 2d DCA 2003); Jacoby v. Jacoby, 763…
cited Cited "see" Hanna v. Schmidt
Fla. Dist. Ct. App. · 1998 · signal: see · confidence high
See Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975); § 61.30(b), Fla. Stat. (1996).
cited Cited "see" Von Eiff v. Azicri
Fla. Dist. Ct. App. · 1997 · signal: see · confidence high
See Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975).
discussed Cited "see" Rogers v. Rogers
Fla. Dist. Ct. App. · 1994 · signal: see · confidence high
Vena v. Vena, 556 So.2d 436 (Fla. 5th DCA 1990); Gardner v. Gardner, 545 So.2d 339 (Fla. 4th DCA 1989); Richardson v. Richardson, 442 So.2d 1005 (Fla. 3d DCA 1983); Whitney v. Whitney, 402 So.2d 1351 (Fla. 4th DCA 1981); see Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975).
cited Cited "see" Schweinberg v. Click
Fla. Dist. Ct. App. · 1993 · signal: see · confidence high
See Dinkel v. Dinkel, 322 So.2d 22 (Fla. 1975).
cited Cited "see" Jablon v. Jablon
Fla. Dist. Ct. App. · 1991 · signal: see · confidence high
See Dinkel v. Dinkel, 322 So.2d 22 (Fla. 1975); Ours v. Ours, 515 So.2d 281 (Fla. 5th DCA 1987); Culpepper .
cited Cited "see" Wolff v. Wolff
Fla. Dist. Ct. App. · 1991 · signal: see · confidence high
See Dinkel v. Dinkel, 322 So.2d 22 (Fla. 1975).
cited Cited "see" Cruz v. Cruz
Fla. Dist. Ct. App. · 1990 · signal: see · confidence high
See Dinkel v. Dinkel, 322 So.2d 22, 23 (Fla. 1975); Richardson v. Richardson, 442 So.2d 1005 (Fla. 3d DCA 1983).
cited Cited "see" Rosen v. Rosen
Fla. Dist. Ct. App. · 1990 · signal: see · confidence high
See Dinkel v. Dinkel, 322 So.2d 22 (Fla. 1975).
cited Cited "see" Usher v. Usher
Fla. Dist. Ct. App. · 1990 · signal: see · confidence high
See Dinkel v. Dinkel, 322 So.2d 22, 24 (Fla. 1975).
cited Cited "see" McKinney v. Lawrence
Fla. Dist. Ct. App. · 1988 · signal: see · confidence high
See Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975).
discussed Cited "see" Wishart v. Bates
Fla. · 1988 · signal: see · confidence high
See Dinkel v. Dinkel, 322 So.2d 22 (Fla. 1975) (When the trial court, in a custody proceeding, makes a determination on the basis of the best interests of the child, the appellate court should not reverse absent a showing of abuse of discretion.).
cited Cited "see" Marriage of Strickland v. Strickland
Fla. Dist. Ct. App. · 1987 · signal: see · confidence high
See Dinkel v. Dinkel, 322 So.2d 22, 24 (Fla.1975); Rogers v. Rogers, 490 So.2d 1017, 1018 (Fla. 1st DCA 1986); Miller v. Miller, 342 So.2d 85 (Fla. 1st DCA), cert. denied, 354 So.2d 983 (Fla. 1977).
cited Cited "see" Wilson v. Wilson
Fla. Dist. Ct. App. · 1986 · signal: see · confidence high
See Dinkel v. Dinkel, 322 So.2d 22 (Fla. 1975); Commander v. Commander, supra .
discussed Cited "see" Nichols v. Nichols
Fla. Dist. Ct. App. · 1986 · signal: see · confidence high
See Dinkel v. Dinkel, 322 So.2d 22 (Fla. 1975); Walden v. Walden, 483 So.2d 87 (Fla. 1st DCA 1986.) Additionally, in Miller v. Miller, 423 So.2d 638 (Fla. 4th DCA 1982), the court addressed an amended final judgment awarding custody of a minor child to the father "as long as [the father] is unmarried and has no sleep-over or live-in friends." The Fourth District held that "[b]ecause restrictions of this nature impact upon the private life of the custodial parent, they will be sustained only if the record contains competent, substantial evidence to demonstrate that they are required to safeguar…
cited Cited "see" Walden v. Walden
Fla. Dist. Ct. App. · 1986 · signal: see · confidence high
See Dinkel v. Dinkel, 322 So.2d 22 (Fla. 1975).
cited Cited "see" Wiggins v. Wiggins
Fla. Dist. Ct. App. · 1982 · signal: see · confidence high
See Dinkel v. Dinkel, 322 So.2d 22 (Fla. 1975).
cited Cited "see" Birtwistle v. Birtwistle
Fla. Dist. Ct. App. · 1979 · signal: see · confidence high
See Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975).
cited Cited "see" Corvison v. Corvison
Fla. Dist. Ct. App. · 1978 · signal: see · confidence high
See Dinkel v. Dinkel, 322 So.2d 22 (Fla. 1975) and cases cited therein.
cited Cited "see" Scheiner v. Scheiner
Fla. Dist. Ct. App. · 1976 · signal: see · confidence high
See Dinkel v. Dinkel, Fla. 1975, 322 So.2d 22 ; and Green v. Green, Fla.App. 1971, 254 So.2d 860 .
cited Cited "see" Hill v. Hill
Fla. Dist. Ct. App. · 1976 · signal: see · confidence high
See Dinkel v. Dinkel, Fla.1975, 322 So.2d 22 .
cited Cited "see" Smith v. Kilgore
Fla. Dist. Ct. App. · 1976 · signal: see · confidence high
See Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975).
cited Cited "see, e.g." Clark v. Clark
Fla. Dist. Ct. App. · 2002 · signal: see, e.g. · confidence medium
See, e.g., Dinkel v. Dinkel, 322 So.2d 22, 24 (Fla.1975); Ward v. Ward, 742 So.2d 250, 254 (Fla. 1st DCA 1996).
discussed Cited "see, e.g." Miller v. Miller
Fla. Dist. Ct. App. · 1982 · signal: see also · confidence low
Trylko v. Trylko, 392 So.2d 1034 (Fla. 2d DCA), appeal dismissed, 399 So.2d 1147 (Fla. 1981); Hackley v. Hackley, 380 So.2d 446 (Fla. 4th DCA 1979); see also Dinkel v. Dinkel, 322 So.2d 22 (Fla. 1975).
cited Cited "see, e.g." Johnson v. Johnson
Fla. Dist. Ct. App. · 1982 · signal: see also · confidence low
See also Dinkel v. Dinkel, 322 So.2d 22 (Fla. 1975).
discussed Cited "see, e.g." Koken v. Neubauer
Fla. Dist. Ct. App. · 1979 · signal: see, e.g. · confidence low
See, e.g., Dinkel v. Dinkel, 322 So.2d 22 (Fla. 1975); Grant v. Corbitt, 95 So.2d 25 (Fla. 1957); Baker v. Baker, 360 So.2d 19 (Fla. 4th DCA 1978); and Scheiner v. Scheiner, 336 So.2d 406 (Fla. 3d DCA 1976).
discussed Cited "see, e.g." McLean v. McLean
Fla. Dist. Ct. App. · 1976 · signal: see also · confidence medium
See also Walker v. Senn, Fla.App. 1st 1976, 340 So.2d 975 , opinion filed September 10, 1976, Case No. BB 28 not yet reported. [8] 19 Fla.Jur., Judgments and Decrees, § 65. [9] Sawyer v. State, Sup.Ct.Fla. 1927, 113 So. 736 , 738. [10] The recitations of the order, quoted in full in Footnote 2, supra, lead to no other conclusion. [11] Brust v. Brust, Sup.Ct.Fla. 1972, 271 So.2d 142 and Dinkel v. Dinkel, Sup.Ct.Fla. 1975, 322 So.2d 22 . [12] 7 Fla.Jur., Continuances, Section 5. [13] Please see Footnotes 2, 3, 4 and 5, supra.
Retrieving the full opinion text from the archive…
Linda A. DINKEL, Petitioner,
v.
Darrell G. DINKEL, Respondent.
46764.
Supreme Court of Florida.
Aug 14, 1975.
322 So. 2d 22
Adkins.
Cited by 121 opinions  |  Published

[*23] James W. Grimsley of Smith, Grimsley, Barron & Remington, Ft. Walton Beach, for petitioner.

D. Michael Chesser, Ft. Walton Beach, for respondent.

ADKINS, Chief Justice.

Upon petition for certiorari to review the opinion of the District Court of Appeal, First District, at 305 So.2d 90 (1974), conflict appears with the myriad cases setting forth the rule that in the absence of a clear showing of abuse of discretion, the decision of the trial judge in a child custody case will not be reversed. Grant v. Corbitt, 95 So.2d 25 (Fla. 1957); Green v. Green, 254 So.2d 860 (Fla.App. 1st, 1971); and Harrison v. Harrison, 165 So.2d 235 (Fla.App. 2nd 1966).

The only contested issue before the trial court in this proceeding for dissolution of marriage was the matter of custody of the parties' three-year-old child.

In any child custody proceeding, the welfare of the child is the prime consideration. Green v. Green, supra. Although a spouse has committed adultery, it may nonetheless be in the best interest of the child that custody be awarded to that spouse. Anderson v. Anderson, 205 So.2d 341 (Fla.App. 2nd, 1967). As stated in McAnespie v. McAnespie, 200 So.2d 606, (Fla.App. 2nd, 1957):

"The fact that a mother is guilty of adultery does not necessarily disqualify her to have the custody of her children. Although she may have been a bad wife, she may be a good mother. The moral unfitness of a mother must be such as has a direct bearing on the welfare of the child, if it is to deprive her of the custody of the child." (Emphasis supplied) (p. 609)

The District Court of Appeal in the case sub judice recognized these rules. Although the District Court referred to the "moral unfitness" of the mother, there is nothing in the opinion which indicates that such "moral unfitness" had any "direct bearing on the welfare of the child." There is conflict and we have jurisdiction.

Petitioner admitted having sexual relations over a period of time with one man while she was married to respondent. During the time petitioner was having an affair with a co-teacher, respondent was overseas in military service. Although the sexual activity was carried on while the subject child was present in the two-bedroom mobile home, it was never performed in front of the child.

Although contradictory testimony was presented at the trial, the record contains competent substantial evidence to show that petitioner is an attentive, intelligent, loving and responsible parent whose adulterous activity did not adversely affect the child.

After holding two separate hearings and listening to twelve witnesses present over 230 pages of testimony, the trial judge entered a judgment awarding custody of the child to petitioner giving extensive visitation rights to respondent. In the final judgment, the trial judge found that although petitioner had committed adultery, it is in the best interest of the minor child that custody be awarded to petitioner.

The District Court reversed the award of custody of the minor child to petitioner and found that, because petitioner had committed adultery in the presence of her child, she was an unfit mother, and therefore not entitled to custody.

Adultery may or may not have a direct bearing on the welfare of a child of tender years. Engaging in sexual intercourse with someone other than one's[*24] spouse in the same household where the subject child is present does not necessarily affect the child's welfare. Whether the adultery has a direct bearing on the welfare of the child is a question for the trier of fact. Where the trier of fact determines that the spouse's adultery does not have any bearing on the welfare of the child, the act of adultery should not be taken into consideration in reaching the question of custody of the child.

Where the trier of fact reaches the conclusion that the adulterous conduct adversely affects the child, the scales are tipped against the award of custody to the adulterous spouse. Even if the trier of fact determines that the spouse's adultery has an adverse effect on the child, other factors, i.e., cruelty, neglect, parental unfitness, exhibited by the other spouse, may be present to tip the scales back in favor of the award of custody to the adulterous spouse. In the latter event, it may be that the best interest of the child would be served by awarding custody to a third party.

While Fla. Stat. § 61.13(2), F.S.A., provides for equal consideration of the spouses in the award of custody, it is still the law in this State that, other essential factors being equal, the mother of the infant of tender years should receive prime consideration for custody. Anderson v. Anderson, 309 So.2d 1 (Fla. 1975).

It is the function of the trial judge in a child custody proceeding to determine what is in the best interests of the child. An appellate court should not reverse the trial judge's findings absent a showing of abuse of discretion. Green v. Green, supra; Harrison v. Harrison, supra. As stated in Grant v. Corbitt, supra:

"[T]his court cannot, in any type of case, overturn the decision of a Chancellor made in the exercise of his judicial discretion in the absence of a clear showing of an abuse thereof; and, in a child custody case, the opportunity of the Chancellor to observe the demeanor and personalities of the parties and their witnesses and to feel forces, powers and influences that cannot be discerned by merely reading the record, assumes a new importance because of the many intangibles that must be evaluated in deciding the delicate question of child custody." 95 So.2d 25, p. 28.

Were this Court to sit as a trier of fact and hear all the evidence, we might have reached a conclusion different from that of the trial judge. However, neither this Court nor the District Court can substitute its judgment for that of the trier of fact, absent a finding of an abuse of discretion, which requires a lack of competent substantial evidence to sustain the findings of the trial judge.

In the case at bar, the trial judge heard extensive testimony and reached the conclusion that the child's welfare would be best served by awarding custody to the petitioner. Without even finding an abuse of discretion, the District Court substituted its opinion for that of the trial judge as to which parent would best satisfy the welfare of the child. Absent a showing of abuse of discretion, which was not shown before the District Court or this Court, the order of the trial judge was not reversible.

Accordingly, the decision sub judice is quashed and the cause is remanded to the District Court with instructions to reinstate that part of the order of the trial court awarding custody of the minor child to the petitioner.

It is so ordered.

ROBERTS, OVERTON and ENGLAND, JJ., DREW, Ret. J., and HENSLEY, Circuit Judge, concur.