A Florida court initially awards child custody based on the agreement of the parties and/or the best interest interests of the child. The appropriate court for a child living in Naples, Florida will be the Collier County courthouse. After the final custody order is entered, the order stands as the law of the land and cannot be modified except by agreement of the parties or by petitioning the court.
Typically, a modification by agreement of the parties doesn’t even require the order to be modified. The parties simply start behaving according to how they agree the order should be. If the parties have been behaving contrary to the order long enough, the order can be formally modified based on that alone.
If you need a modification to your order, you must file a supplemental petition for modification not a motion for modification because the modification requires service on the other party because their lawyer’s appearance is dismissed upon entry of the of the previous final order.
In Florida, there is a simple two-step process used to determine whether you can modify an existing custody order:
- There has been a substantial, unanticipated change in circumstances that have occurred since the entry of the order.
- The proposed change would be in the best interests of the child.
No event on its own is automatically substantial outside of the death of a parent. In Re M.D. 982 So. 2d 307 (Fla. 2nd DCA 2006). The court has to consider if the alleged change has some effect on the child that would cause rise for the need to revise the custody order. Remarriage is not enough. D.M.G. v. G.E.M., 32 So. 3d 750(Fla. 3d DCA 2010). Drug use is not enough. There must be some showing of how this change is having an effect. Wyatt v. Wyatt, 689 So. 2d 1140 (Fla. 3d DCA 1997).
Typically, there’s also a showing that the child’s reaction to the event is negative. The best evidence of this is bad grades or some kind of report of poor behavior. But, the other parent can show that they are taking measures to adapt to the change so the child will not have a negative reaction.
The most successful petitions for modifications cite not just one event but multiple events because it is so difficult for the other parent to take ameliorative steps to accommodate the child to multiple changes. McIntyre v. McIntyre, 452 So. 2d 14 (Fla. 1st DCA 1984)
Every proposed substantial change of circumstance operates on a continuum. A DUI is probably not a substantial change of circumstance while two consecutive DUI arrests with the children in the car is a substantial change. Allen v. Allen, 787 So. 2d 215 (Fla. 5th DCA 2001)
This high bar to establish a substantial change of circumstance is no excuse for bad behavior, however. Excessive bickering, arguing and fighting between the parents have been held to be a substantial change of circumstances even when the parent has said, “I have always been that way.” Wade v. Hirschman, 903 So. 2d 928 (Fla. 2005). But, in reality, most allegations of bickering between the parties will not be held as a change as that behavior is predictable. Ogilvie v. Ogilvie, 954 So. 2d 698 (Fla. 1st DCA 2007)
Relocation of one of the parents can be invoked as a substantial change in circumstance but relocation is typically handled under the relocation statute, Fla. Stat. Sec 61.13001. The relocation statute provides more specificity and doesn’t have as stringent of a burden as the requirement of a “substantial change of circumstances”.
If the alleged substantial change in circumstances was reasonably foreseeable a modification will not be granted. Bragassa v. Bragassa, 505 So. 2d 556 (Fla. 3d DCA 1987). The best way to determine if an event was foreseeable is to see if it was contemplated in the final order. For example, if there is a clause in the final order that specifies what happens, if a party loses their job, then that circumstance (losing the job) will not be foreseeable and will not allow a modification. The parties will simply follow the clause in the final order.
There is a way around the requirement of proving a substantial change of circumstances. In the final order, the parties can specify that a substantial change of circumstances is NOT necessary to modify the final order. Blackburn v. Blackburn , 103 So. 3d 941 (Fla. 2d DCA 2012). The parties can specify exactly what needs to take place to effectuate a modification. This is highly advisable if the children are approaching some kind of milestone like kindergarten or entry into selective high schools.
There is one other exception to the requirement to prove a substantial change of circumstances. The statute also provides that modification of a final order is available if a party can “demonstrat[e] material facts concerning the welfare of the child that the court did not know at the time the decree was entered.” Fla. Stat. Sec. 61.13(3)(f). Secret lovers who become new spouses are the best example of this “material fact”.
There will always be the suspicion that a modification of parenting time’s true goal is to modify child support based on a change in parenting time. This is an issue that should be brought up or avoided based on the particular parent’s position.
If you need to modify your parenting plan, contact my family law firm in Naples, Florida and schedule a free consultation with an experienced divorce lawyer.