RUSSELL W. BOLTON, APPELLANT,
v.
PATRICIA H. (BOLTON) GORDON, APPELLEE
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In this family law case, the Florida District Court of Appeal affirmed a trial court's modification of a child custody arrangement in a divorce decree. The husband challenged the modification, arguing the original stipulation included a non-waiver clause that required written consent for any changes. The court held that while courts have continuing power to modify custody orders upon substantial change of circumstances, the trial court's discretionary decision here was properly supported by evidence of changed circumstances.
The court affirmed the modification order. While courts are not bound by non-waiver provisions in custody stipulations because they have continuing power to modify custody orders upon substantial change of circumstances, the trial court's decision was also properly grounded in the finding of a substantial change in circumstances—namely, that the child had lived continuously with the mother for four years—which was in the child's best interests.
“It is clear that, in deciding what action should be taken on a petition to modify a custody order, the welfare of the child is the chief consideration.”
Establishes that the best interests of the child is the paramount standard in custody modification cases.
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Join FLexlaw to unlock all legal intelligenceThe parties divorced in 1963 with a stipulated custody arrangement providing for a 6-month split of their minor child's time between them. The stipula…
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This interlocutory appeal challenges a post-decretal order in a divorce action granting a modification of child custody.
*755Plaintiff-husband was awarded a final decree of divorce in 1963. In accordance with stipulations entered into between the parties and adopted by the court custody of their minor child was to be split, six months of the year with each. The stipulation further provided that, in the event defendant were to move more than 75 miles from Titusville, Florida, plaintiff would have custody for 9 months of the year, and defendant, the remaining- 3 months. It was also expressly provided that no waiver of any of the terms of the stipulation could be made by either party unless made expressly and in writing.
Three months after the entry of the divorce decree plaintiff was inducted into the armed forces. During his period of service he allowed defendant to retain continuous custody of their minor child.
Defendant filed a petition for modification on January 17, 1967, when she learned her new husband was to be transferred to Alabama. After a hearing, the trial court modified the final decree, finding a change in circumstances in that plaintiff had not insisted on his right of custody since the original decree. Defendant was granted custody for 9 months to coincide with the school year, and plaintiff was to have custody during the 3 summer months.
It is clear that, in deciding what action should be taken on a petition to modify a custody order, the welfare of the child is the chief consideration. 10 Fla.Jur., Divorce, Separation and Annulment, § 262. Further, the continuing power of a court to modify a custody order upon a substantial change of circumstances is not affected by the fact that the decree incorporated any stipulation of the divorced parties respecting custody. Butler v. Butler, Fla.App.1961, 132 So.2d 437; Annot., 73 A.L.R.2d 1444. Therefore, the chancellor was not bound by the non-waiver provision in the stipulation adopted in the original decree insofar as it related to child custody. But this is not essential to our decision.
The chancellor found a substantial change in circumstances since the entry of the final decree in that the six-year-old child had lived continuously for the past four years with her mother. He further found it to be in the best interests of the child that this change of circumstances be recognized by a modification of the decree.
We affirm, keeping in mind that, unless an abuse of discretion is discernible from the record, a reviewing court is bound by the presumed correctness of the chancellor’s decree in matters of the custody of minor children. Maloy, Fla.Appellate Prac. & Proc., § 1025.
■ Affirmed.
CROSS, J., and WADDELL, THOMAS R., Jr., Associate Judge, concur.
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Lane v. Lane, 599 So. 2d 218 (Fla. 4th DCA 1992)…ny parent, any expert. That heavy responsibility mandates that a court, is not bound by any agreement between parents, nor by the opinions of any expert or group of experts. See Sedell v. Sedell, 100 So. 2d 639 (Fla. 1st DCA 1958); Bolton v. Gordon, 201 So. 2d 754 (Fla. 4th DCA 1967). Nor can this court substitute its opinion for that of the trier of fact. Adams v. Adams, 376 So. 2d 1204 (Fla. 3d DCA 1979), cert. denied, 388 So. 2d 1109 (Fla.1980); Smith v. Smith, 55 So. 2d 735 (Fla.1951). However, the ratio…
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Gerscovich v. Eugenio Alberto Gerscovich, 406 So. 2d 1150 (Fla. 5th DCA 1981)…ibition against alternating custody is not absolute. In the following cases some form of alternating custody was permitted: Hare v. Potter, 233 So. 2d 653 (Fla.4th DCA 1970); Lindgren v. Lindgren, 220 So. 2d 440 (Fla.2d DCA 1969); Bolton v. Gordon, 201 So. 2d 754 (Fla.4th DCA 1967); Hutchinson v. Hutchinson, 127 So. 2d 136 (Fla.3d DCA 1961); and Metz v. Metz, 108 So. 2d 512 (Fla.3d DCA 1959). Even in some of those cases where an award of alternating custody was reversed, the courts expressed approval of it…
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Ronad McALISTER v. Shaver, 633 So. 2d 494 (Fla. 5th DCA 1994)…§ 61.-13(2)(b)2.b, Fla.Stat. (1991). The court’s responsibility to the child cannot be abdicated to any parent or expert. A court is not bound by any agreement between parents. Lane v. Lane, 599 So. 2d 218, 219 (Fla. 4th DCA 1992); Bolton v. Gordon, 201 So. 2d 754 (Fla. 4th DCA 1967); Sedell v. Sedell, 100 So. 2d 639 (Fla. 1st DCA 1958). A trial court has the authority to decline to follow a settlement agreement between the parties relating to child custody, visitation, and support. Holland v. Holland, 458 So…
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- Butler v. Butler, 132 So. 2d 437 (Fla. 3d DCA 1961)