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Braynon v. Hilbert

The trial court erred in using a change in conditions analysis to deny the father's petition for custody of his legitimated son, because the best interest of the child standard applies when there has been no previous adjudication of custody.

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Keith Braynon appeals from the trial court’s order denying his petition for custody of his four-year-old son after Braynon legitimated the child. Braynon asserts that the trial court applied the wrong legal standard in its evaluation of the custody issue. For reasons that follow, we agree and reverse. The record shows that Braynon filed a petition to legitimate the minor child, and that, after mediation, he entered into a consent agreement with the child’s mother, Alexa Hilbert, in which she consented to the legitimation. The consent agreement also provided visitation rights for Braynon and obligated him to continue to provide child support. The issue of custody was not addressed in the consent agreement, and the trial court approved the agreement.

After obtaining the order legitimating his son, Braynon filed a separate action seeking custody of his son. Although titled a “petition for change of custody,” Braynon’s counsel clarified in the hearing on the petition that he sought to obtain a judicial decree establishing the custody rights of the child’s parents for the first time. The trial court denied Braynon’s petition based on its conclusion that Braynon was required to establish a change of circumstances affecting the welfare of the child in order to obtain custody. The trial court also denied Braynon’s motion for new trial, and rejected his argument that the trial court should have applied a best interest of the child analysis when establishing the custody rights of the parents for the first time, as opposed to a change of circumstances standard.

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