DARLA J. CASSIN, APPELLANT,
v.
CHARLES E. CASSIN, APPELLEE
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In this family law appeal, the former wife sought to modify a child custody arrangement from rotating custody to primary custody. The court affirmed the denial of her petition, holding that while the settlement agreement allowed limited review of the parenting arrangement, it applied only to changes within rotating custody, not to a fundamental change to primary custody.
No. Paragraph N applies only to changes within the rotating custody arrangement, not to a fundamental change from rotating to primary custody. To change from rotating custody to primary custody, the wife must show both that the change is in the best interest of the children and that a substantial change has occurred in the circumstances of the parties since the original custody award. The wife failed to meet her burden under either applicable standard.
[1] A settlement agreement provision allowing for review of a parenting arrangement one year after its execution does not obviate the requirement to demonstrate a substantial…
[2] Parties may agree to limit the criteria for a change in custody to the best interest of the children.
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Join FLexlaw to unlock all legal intelligence“The parties agree that either party may request one year from the exaction [sic] of this agreement a review of the parenting agreement and parenting time based upon the best interest of the children.”
Paragraph N of the settlement agreement, which the wife relied upon to argue that she only needed to show best interest of the children
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Join FLexlaw to unlock all legal intelligenceIn August 1995, Darla and Charles Cassin's marriage was dissolved by final judgment that incorporated a settlement agreement providing for rotating cu…
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WHATLEY, Judge.
Darla J. Cassin (wife) appeals the denial of her supplemental petition for modification of child custody. We affirm.
On August 26, 1995, a final judgment of dissolution of the marriage of Darla J. Cassin and Charles E. Cassin was entered. The final judgment approved and incorporated the parties’ settlement agreement, which provided for rotating custody of the parties’ two minor children. In her supplemental petition, the wife sought primary custody of the children.
The wife contends that paragraph N. of the settlement agreement is controlling. That paragraph states:
N. REVIEW OF PARENTING ARRANGEMENT: The parties agree that either party may request one year from the exaction [sic] of this agreement a review of the parenting agreement and parenting time based upon the best interest of the children. This review will not require a demonstration of a substantial change in circumstances, and may be made by motion.
Based on this language, the wife argues that she should have been allowed to raise the issue by motion and that her only burden was the best interest of the children. We reject this argument for several reasons.
First, we view this language as only applying to changes in the rotating custody arrangement. Second, for a change from rotating custody to primary custody, the wife had to show: (1) a change of custody is in the best interest of the children and (2) a substantial change has occurred in the circumstances of the parties since the original custody award. See Gibbs v. Gibbs, 686 So. 2d 639 (Fla. 2d DCA 1996). If paragraph N. applied to changes in primary custody, we would agree that the sole criteria for the trial court to determine would have been the best interest of children. There is no prohibition against parties limiting the change of custody criteria to a “best interest” standard. See also Ballantyne v. Ballantyne, 666 So. 2d 957 (Fla. 1st DCA 1996).
Last, as the trial court aptly noted, the wife failed to carry her burden under any of the applicable standards. Even if the only standard was the best interest of the children, the wife did not put forth sufficient evidence to satisfy this standard.
Affirmed.
CAMPBELL, A.C.J., and PATTERSON, J., Concur.
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Wyckoff v. Wyckoff, 820 So. 2d 350 (Fla. 2d DCA 2002)…re, does not waive or lower the standard of proof in a modification of custody proceeding. Similarly, the marital settlement agreement and final judgment did not address the burden of proof to obtain a modification in custody. See Cassin v. Cassin, 726 So. 2d 399 (Fla. 2d DCA 1999) (addressing marital settlement agreement wherein parties agreed to review of parenting arrangement based upon best interests of children without .substantial change in circumstances). The agreement in this case simply established…
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Wade v. Hirschman, 872 So. 2d 952 (Fla. 5th DCA 2004)…erez. .Mooney v. Mooney, 729 So. 2d 1015 (Fla. 1st DCA 1999). But see Cooper v. Gress, 854 So. 2d 262 (Fla. 1st DCA 2003); Ring v. Ring, 834 So. 2d 216 (Fla. 2d DCA 2002); Newsom [*955] v. Newsom, 759 So. 2d 718 (Fla. 2d DCA 2000); Cassin v. Cassin 726 So. 2d 399 (Fla. 2d DCA 1999); Skirko v. Skirko, 677 So. 2d 885 (Fla. 3d DCA 1996), rev. denied, 689 So. 2d 1071 (Fla. 1997); Brenda M. Abrams, 4 Florida Family Law, § 81.01 [6] at 81-11 (Mathew Bender 2003). . Some of the testimony revealed that Wade's actio…
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Johnson v. Adair, 884 So. 2d 1169 (Fla. 2d DCA 2004)…e have previously required that the Gibbs test be applied to requests for the modification of joint custody arrangements. Ring v. Ring, 834 So. 2d 216 (Fla. 2d DCA 2002); Newsom v. Newsom, 759 So. 2d 718 (Fla. 2d DCA 2000); Cassin v. [*1173] Cassin, 726 So. 2d 399 (Fla. 2d DCA 1999). Here, the trial court erroneously limited its inquiry to a consideration of the factors set forth in section 61.13(3), as if it were making an initial custody determination. On the issue of the applicability of the standard enunc…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Karie Lynn Gibbs v. Gibbs, 686 So. 2d 639 (Fla. 2d DCA 1996)
- Ballantyne v. Ballantyne, 666 So. 2d 957 (Fla. 1st DCA 1996)