Parents that go through the divorce process in Florida will have created a parenting plan either by entering into an agreement or having the family law judge impose a parenting plan by way of the Final Judgment of Dissolution of Marriage. The Parenting Plan will specify time-sharing arrangements and the distribution of parental rights and responsibilities. It is imperative when you are involved in a divorce that you understand once a Parenting Plan is part of a judgment it is very difficult to alter. While a Parenting Plan can be modified, the legal standard for such a modification is high so it is advisable to approach a Parenting Plan like it is a permanent arrangement that will not change absent extraordinary circumstances.
When a parent wishes to change the terms of a Parenting Plan, the parent that wants to change the time-sharing arrangements or other terms of the Parenting Plan must show that there is a substantial change in circumstances. This is a fairly daunting test to meet because the circumstances that justify the change must be material, substantial and unanticipated. While it is possible to satisfy this legal standard, a high evidentiary burden must be met.
The case law in this area is complicated so it is imperative to seek legal advice from an experienced Florida family law attorney if you intend to seek modification of a Parenting Plan. If you are successful as the moving party in establishing a substantial change of circumstance, the court may then consider whether a modification of the Parenting Plan is in the best interest of your child. The family law judge may not even consider the question of the best interest of your child until the substantial change of circumstances standard has been satisfied.
One way to understand what circumstances are sufficient to meet the legal standard is to consider the cases cited below:
Cooper v Gress, 854 So. 2d 262 (1st DCA, 2003): The mother who sought a modification alleged that the parents could not communicate effectively and that the father had a serious illness which interfered with his ability to provide proper parenting. The mother also contended that the children wished to live with her. While the court accepted that the parties did not communicate well, the court did not think that a modification of the timeshare would remedy the communication issues. The court also found that the father’s medical condition was in remission so it was irrelevant. Ultimately, the court found that these facts did not support a modification of custody.
Wade v. Hirschman, 903 So. 2d 928 (Fla. 2005): The Florida Supreme Court relying on Cooper found that modification of the custody arrangement was proper based on the uncooperative conduct of the mother. The mother had engaged in a pattern of alienating behavior toward the father and also failed to work with the parenting coordinator or to abide by the terms of the parenting agreement between the parties.
Compare with the facts in…
Watt v. Watt, 966 So. 2d 455 (Fla. 4th DCA 2007): The Florida Fourth District Court of Appeal held that the parties impasse in picking the private school their child would attend was considered a substantial change in circumstances at the time the parties signed the Parenting Plan which provided for shared parental responsibility. However, the parenting plan did not designate one parent as possessing the ultimate responsibility over specific aspects of the child’s welfare, i.e. education, medical care. The Appellate Court concluded that the trial court had properly resolved the impasse between the parties because the parties could not come to an agreement on the welfare of their child. To resolve the impasse, the trial court in the Watt case found that it was in the best interest of the child for the mother to be the final decision-maker with respect to the child’s education.
These cases and others reveal that there is no one dispositive fact or circumstance that will necessarily constitute a substantial change of circumstances. When there is a pattern of facts that support a substantial change, the court is more likely to make modifications to a parenting plan than when only one single factor is present. However, even this conclusion is not without exception. While Florida courts have found that the relocation of a parent or inability of the parents to communicate alone is not sufficient to support a modification, parental alienation has been found to be sufficient.
The complex array of factors that may be relevant when a parent seeks to modify a parenting plan along with the high evidentiary burden makes it critical to obtain legal representation from an experienced Florida family law attorney. If you are considering in retaining an experienced West Palm Beach child custody attorney, James S. Cunha and his legal team may be able to assist you.