When parents with minor children divorce or separate, Florida law requires they draft a parenting plan that establishes, among other things, a time-sharing schedule and parental responsibility. The parenting plan also sets out a schedule as to when each parent has parenting time, means of communication with the children, financial responsibilities relative to the children, etc..
A court-approved parenting plan is a court order and if violated can result in a party having to pay court costs and attorney fees as well as possibly relinquishing legal or primary custody and other sanctions. However, parenting plans can be modified as the child gets older or other circumstances arise so that the original order is no longer workable.
If the changes are minor, such as some alterations in the visitation schedule and the parties are in agreement, the change in the plan may not need to be presented to the court for approval. But if a parent does not agree, then even a minor modification may not be readily obtained. The standard the court uses in modifying a parenting plan is:
- that there be a substantial, material and unanticipated change in circumstances; and
- the modification is in the best interests of the children.
If you wish to make modifications to the plan and the other parent does not consent, you do have to present evidence that adheres to the standard. Any modifications sought must not be trivial or temporary and must be “substantial.” Typical examples of substantial changes are drug/alcohol abuse by a parent, poor school grades or attendance, a change in a party’s work schedule that prevents him/her from exercising their parenting time, children’s behavioral issues, or domestic violence. If a party is able to meet their burden that a substantial change of circumstances has occurred, they must then prove that the change in the parenting plan would be in the child’s best interest.
Factors to Determine Best Interests of the Child
The standard, “best interests of the child,” is one used by all state courts. It is purposely vague and subjective since each case is unique, but there are statutory factors the Florida courts look at to see if the proposed change is indeed in the child’s best interests or which supports the child’s welfare, safety and overall health. The statutory factors that the court examines are:
- the capacity of the parties to participate in a close and continuing relationship with the child and to be reasonable if changes are required
- the division of parental responsibilities and whether or which responsibilities will be delegated to third parties
- the demonstrated capacity of each parent to giving priority to the child’s interests over those of the parents
- how long the child has been in a stable, satisfactory environment and the desirability of maintaining it
- the geographic viability of the parenting plan
- moral fitness of each parent
- mental and physical health of each parent
- home, school and community record of the child
- each parent’s knowledge, capacity and disposition of the child’s school, teachers, friends, daily activities, medical care and favorite things
- each parent’s demonstrated capacity to provide a routine including discipline and daily schedules
- ability of each parent to keep the other sufficiently and timely informed of issues and events affecting the child and to be united on major issues regarding the children
- evidence of domestic violence, neglect, abuse or abandonment; court is to acknowledge in writing if such incidents or conduct affected its decision when evaluating the best interests of the child
- if a parent knowingly provided false testimony regarding the other parent’s alleged domestic violence or abuse
- the nature of each parent’s parenting tasks and division of responsibilities and extent to which any were delegated to third parents
- ability and capacity of each parent to not disparage the other in the child’s presence and to insulate the child from the litigation and ancillary matters stemming from the divorce
- the developmental stage of the child and needs and ability and capacity of each parent to meet those needs
- if sufficiently intelligent, old and mature enough, the preferences of the child (16 or 17 years of age is the likely age)
- any other relevant factors
The courts favor consistency in the child’s life and schedules. If the child is thriving in the current situation, any major modifications will likely be denied.
Additional Examples of Changed Circumstances
If a parent desires a change in the percentage of parenting time based on the other parent’s alleged abnormal behavior, the court will not consider the fact that one parent may be stricter or more permissive than the other or has a different parenting style or that there was a single episode of misconduct other than a major criminal violation. If the misconduct was significant and has been frequent, then the court might be amenable to a change.
Other substantial changes warranting modification might be a continual failure of a parent to abide by the visitation schedule, to falsely accuse the other of child abuse or molestation or continued disparagement and/or interfering with the child’s communications with the other parent.
The Modification Hearing
The parent seeking the modification will need to present compelling evidence to convince the court that it is in the child’s best interest. Potential witnesses at the hearing might include:
- both parties
- therapists and psychologists
- physicians—if there are allegations of abuse, neglect or molestation or the child has special needs
- relatives from each side
- coaches
- teachers
- babysitters
Potential documentary evidence might include:
- medical records
- school records
- therapy records
- police reports if applicable
