In Naples, Florida, to modify an existing order that lays out the parenting time and/or custody of a child, it depends on what the circumstances are. There are three possible circumstances and I go into each below.

  1. Emergency Modification.

If the child may be subject to physical harm or may be suffer from some type of harm which cannot be resolved through the months long process of filing and hearing a regular motion (such as a removal to another state where the child would be enrolled in a new school), an emergency motion may be filed.  An emergency motion does not require that you notify the other side (you still should, if able).

The first test of an emergency motion is whether the matter is, in fact, an emergency.  This test will vary based on the facts at hand and the judge who is hearing the motion.

After it is determined that the matter is an emergency the judge will make a decision based on, possibly, solely the information you present and make an “emergency order.”  A status date on the situation will then be set in the very near future.  At this status date, the other side will have the opportunity to review your petition, answer your petition and file a petition of their own, if need be.

While there are not rules in place in Florida to explicitly punish those who file emergency petitions that turn out to not be emergencies, a petition for sanctions may be available should the emergency petition be ruled a non-emergency.

  2. Temporary Modification.

A request for a temporary modification in custody pending a hearing on permanent modification is an odd request.  Both the petition for temporary modification and permanent modification require the same two elements: 1) A substantial change in circumstances and 2) that the change be in the best interests of the child.

Because of these almost identical legal natures, the courts are split as to whether a temporary modification can be granted when having satisfied a temporary modification’s requirements, you’ve also satisfied the permanent modifications requirements.

One could imagine a court “splitting the baby” by allowing a temporary modification of custody when faced with a temporary substantial change in circumstances.  For example, a temporary military deployment or job transfer of one parent.  It’s not clear how this would be different than a permanent order that just included a trigger of when it could be modified next.  Family law is a very emotional area of the law and sometimes calling something a name that is softer than another name even though it has the same effect is a good policy for all parties involved.

  3. Modifying A Final Order

When the case is already in existence and you want to request something from the court, you file a motion.  In the case of modifying a final custody order in Florida, you do not file a motion, you file a supplemental petition for modification of a final custody judgment.  I know that’s a mouthful but it means you’re sort of starting from scratch with a special process server and everything.  This is because you have to serve the other party all over again because their attorney (or themselves) is no longer the official attorney of record after the final order was entered.  This prevents people from doing things to custody without verified notice to the other parent.

A petition for modification of a final custody judgment must include the following:

  1. Allege a basis for not following the status quo. Allege that there has been a substantial and unanticipated change of circumstances that impacts the suitability of the existing parenting agreement, allege that material facts that effect the parenting schedule were not available at the time the judgment was entered, or allege the occurrence of an event listed in the final order that allows for modification.
  2. A listing of the facts that imply that a modification would be in the child’s best interests.

A modification may be necessary to reflect the new status quo of visitation and custody that has been achieved organically but no longer is reflected by the current parenting plan.  Otherwise, the other parent will always have the opportunity to turn around and try to enforce the existing parenting plan. 

After a modification of custody or parenting time is made, a subsequent motion to modify child support based on the new parenting times can be made.

Modifying custody is treated extremely seriously by the court and is no casual request.  Contact my family law office in Naples, Florida to discuss your options in establishing or modifying custody.