RACHEL ANNETTE KASCHAK, APPELLANT,
v.
DANIEL JOSEPH KASCHAK, APPELLEE

Fla. 1st DCA | 2004-12-29
No. 1D04-2371
ERVIN and BARFIELD, JJ., Concur.
890 So. 2d 427 Florida District Court of Appeal, First District (2004) Positive Treatment
Cited by 2 cases

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Synopsis

Rachel Kaschak appeals a trial court's order transferring primary residential custody of the parties' minor children to her former husband, Daniel Kaschak, based on her repeated denial of his visitation rights. The appellate court affirms, holding that under Florida Statute section 61.13(4)(c)5., a noncustodial parent seeking custody modification based on denial of visitation rights need not prove a substantial change in circumstances beyond the denial itself.


Holding

Under the plain language of section 61.13(4)(c)5., no separate finding of substantial change in circumstances is required; instead, the statute requires only that (1) the noncustodial parent request modification, (2) the custodial parent has denied visitation without proper cause, and (3) the modification is in the best interests of the child. The improper denial of visitation constitutes sufficient grounds for custody modification without an additional substantial change in circumstances requirement.


Headnotes

[1] A trial court may award custody to a noncustodial parent upon request if the custodial parent has refused to honor the noncustodial parent's visitation rights without pro…

[2] A custodial parent's refusal to honor a noncustodial parent's visitation rights without proper cause constitutes a sufficient basis for modifying custody under Florida St…

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Key Quotes

“the plain language of the statute indicates that a modification of custody, pursuant to section 61.13(4)(e)5., requires: (1) a custody modification request by the noncustodial parent; (2) a showing that the custodial parent has denied the noncustodial parent's visitation rights without "proper cause" and; (3) a determination by' the trial court that a modification of custody is in the best interests of the parties' children.”

Establishes the three-part test for custody modification under the statute without requiring a separate substantial change in circumstances finding.

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Facts & Procedural History

Rachel Kaschak had primary residential custody of the parties' minor children. Daniel Kaschak, the noncustodial parent, had visitation rights that Rac…

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Opinion of the Court
KAHN, J.

KAHN, J.

Appellant, Rachel Kaschak, challenges the trial court’s order transferring primary residential responsibility of the parties’ minor children to her former husband, Daniel Kaschak. The primary issue in this case is whether a trial court must expressly find a substantial change in circumstances before modifying custody pursuant to section 61.13(4)(c)5., Florida Statutes (2003). We find, under the language of the statute, that a change in circumstances, other than the circumstance described in the statute, need not be shown and, therefore, we affirm.

The trial court transferred primary residential custody to Mr. Kaschak by a thorough and articulate order setting out Mrs. Kasehak’s repeated disregard of Mr. Kasc-hak’s visitation rights. By enacting section 61.13(4)(c), the Legislature addressed the problem of a custodial parent denying the visitation rights of the noncustodial parent. In pertinent part, that statute provides:

(c) When a custodial parent refuses to honor a noncustodial parent’s ... visitation rights without proper cause, the court shall ... award the noncustodial parent ... a sufficient amount of extra visitation to compensate the noncustodial parent or grandparent.... In addition, the court: 5. May award custody, rotating custody, or primary residence to the noncustodial parent, upon request of the noncustodial parent, if the award is in the best interests of the child....

The plain language of the statute indicates that a modification of custody, pursuant to section 61.13(4)(e)5., requires: (1) a custody modification request by the noncustodial parent; (2) a showing that the custodial parent has denied the noncustodial parent’s visitation rights without “proper cause” and; (3) a determination by' the trial court that a modification of custody is in the best interests of the parties’ children. Upon a-thorough review of the entire record, we find that all three of the above elements were satisfied in this case. The trial court’s findings amply demonstrate that its decision was premised upon the consideration of the best interests of the parties’ minor children.

Notwithstanding the plain language of the statute, Mrs. Kaschak, insists that the trial court may not transfer custody without finding a “substantial change in circumstances.” We are of the view that the Legislature, in drafting section 61.13(4)(c)5., intended to alter the burden for modification placed upon a noncustodial parent who has been denied his or her visitation rights without proper cause. It is not important. whether one views the effect of the statute as completely eliminating the requirement of showing a substantial change in circumstances or as simply defining the improper denial of visitation as a substantial change in circumstances. Under either view, the outcome remains unchanged. Our interpretation of section 61.13(4)(c)5. is consistent with decisions rendered by our sister courts. See, e.g., Raleigh v. Smith, 882 So. 2d 1055, 1056 (Fla. 2d DCA 2004); Leeds v. Adamse, 832 So. 2d 125, 128 (Fla. 4th DCA 2002); Teller v. Richert, 744 So. 2d 1230, 1231-32 (Fla. 3d DCA 1999); Williams v. Williams, 676 So. 2d 493, 495 n. 1 (Fla. 5th DCA 1996).

We have considered the other arguments presented by Mrs. Kaschak on appeal regarding the sufficiency of the trial court’s findings and the evidence before it and find those arguments to be without merit. Accordingly, we AFFIRM the order transferring primary residential responsibility to Mr. Kaschak.

ERVIN and BARFIELD, JJ., Concur.


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Citator

Cited By

  • Albert v. Rogers, 57 So. 3d 233 (Fla. 4th DCA 2011)
    …that the custodial parent has denied the noncustodial parent’s visitation rights without "proper cause” and; (3) a determination by the trial court that a modification of custody is in the best interests of the parties children. Kaschak v. Kaschak, 890 So. 2d 427, 428 (Fla. 1st DCA 2004).…

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