Court: District Court of Appeal of Florida; November 29, 2007; Florida; State Appellate Court
Robert A. Lewandowski, the former husband, appealed an order that denied his petition to change primary residential custody of the couple's child from his ex-wife, Jean Lewandowski (now Jean Langston). The trial court had concluded there was no substantial change in circumstances; however, the appellate court disagreed and reversed this decision. The final judgment of dissolution from October 2000 had designated the former wife as the primary residential parent while allowing shared parental responsibility and liberal visitation for the former husband. In September 2005, he petitioned for primary custody, citing concerns about potential sexual abuse due to Jean's marriage to Robert Langston, a registered sex offender.
Key facts included that the couple's son is now nine years old and had lived primarily with the former wife since birth. The former husband maintained a close relationship with the child despite the distance between Florida and Alabama, visiting several times a year and hosting the child during holidays. He lived in a stable environment, with a three-bedroom home where the child has his own room, and a supportive new wife. Conversely, the former wife has moved six times since the divorce, living in mostly mobile homes and enrolling the child in three different schools, although he currently performs well academically. After her marriage ended in January 2004, she moved back with her parents before settling in a farmhouse in Blountsville. Additionally, she began attending community college and subsequently married Langston.
Mr. Langston, a former police officer in Alabama, was discovered to be a registered sex offender, having been convicted for inappropriate touching of his twelve-year-old daughter. Following the revelation of his status, he resigned from his police position and was charged with violating community notification statutes by working near a child care facility. In May 2006, he pled guilty, receiving a ten-year suspended sentence and three years of supervised probation. The former wife was aware of Mr. Langston's sex offender status when they married in July 2005 and had investigated his conviction, which she minimized as a misdemeanor involving inappropriate touching during his custody dispute. She expressed no concerns about his presence around their minor child.
After the former wife remarried, the child lived with them in Winfield, Alabama. She informed the former husband that Mr. Langston had been accused of inappropriate touching but omitted that he was a registered sex offender. Upon discovering this through the Alabama Department of Public Safety, the former husband contacted the Department of Child Welfare, which conducted an investigation but took no action. Concerned for the child's safety, he filed a petition for custody modification, though he acknowledged there was no evidence of abuse while the child was in the former wife's care.
Alabama law prohibits Mr. Langston from living in the same home as the minor child, a fact the former wife learned only after the petition was filed. Subsequently, she and the child moved to separate residences, though they continued to interact as a family during the day. At the hearing's conclusion, the trial court issued a temporary order barring the former wife from cohabiting with Mr. Langston and requiring that he not be present with the child without adult supervision.
The trial court mandated that when the child, the former wife, and Mr. Langston were in the same residence, adult supervision was required on a room-to-room basis. The court ultimately denied the former husband's petition for a change of custody, acknowledging that while circumstances were not "ideal," he failed to provide evidence of an unsafe environment for the child. The court found no evidence of sexual abuse or unsafe conditions during the former wife's care, despite investigations by the Alabama Child Welfare Agency and a private investigator yielding no findings against her. Nevertheless, the court ruled that the former wife could not allow the child to live with Mr. Langston, who needed to be supervised at all times when around the child.
To modify custody, the petitioning party must demonstrate a substantial and material change in circumstances since the final judgment, as well as that the change serves the child's best interests. The standard of review for such determinations is abuse of discretion, requiring competent evidence to support the trial court's decision. The evidence indicated that the former wife's actions exposing the child to a registered sex offender constituted a material change affecting the child’s well-being.
The court's inconsistency in denying a change in circumstances while simultaneously imposing restrictions on Mr. Langston's presence with the child raised questions. Without a finding of material change, the trial court did not evaluate the child's best interests. Consequently, the order denying the former husband's change of custody petition was reversed and remanded for further proceedings. The former husband acknowledged allowing the child a sip of beer out of curiosity and had a past conviction for reckless driving, initially charged as DUI, though the child was not present during that incident. The trial judge appeared to view the former husband's residence as more suitable due to its size and comfort.
