Posted by Nydia Streets of Streets Law in Florida Child Custody

A Florida parenting plan can be modified upon a showing of a substantial change in circumstances that was not contemplated at the time the plan was entered. There must also be a showing that a modification of the plan would be in the best interest of the child. In Hutchinson v. Hutchinson, 1D19-946 (Fla. 1st DCA December 27, 2019), the former wife appealed an order modifying timesharing.

After the parties’ divorce, they informally changed the timesharing in their parenting plan to allow the former husband more visits with the parties’ child. At some point, these extra visits stopped and the parties went back to more closely following the parenting plan. The former wife also moved and the child’s school changed based on her move. Based on these factors, the former husband filed a petition for modification of timesharing, alleging that it was in the best interest of the parties’ child to have equal timesharing with both parents. The trial court agreed with him and entered an order modifying the parenting plan to give the former husband increased timesharing.

The former wife appealed, and the appellate court agreed with her. The court held “Here, [the former husband] alleged that his ex-wife had limited the time he spent with his son, changed the child's school without notifying him, and had moved several times. But these circumstances don't prove a substantial change in circumstances. There was no evidence, for instance, that [the former wife] denied [the former husband] the timesharing ordered by the final judgment. Rather, the parties adopted an informal timesharing arrangement for a while after the final judgment that gave [the former husband] more time with his son. In 2017, contrary to [the former husband’s] wishes, the timesharing reverted back to more closely resemble the original court-ordered plan. But this change in the parties' dealings is not a basis for finding a substantial change in circumstances. See, e.g., Brown v. Brown, 124 So. 3d 424, 425 (Fla. 1st DCA 2013) ("[A] parent's consent to extra visitation is not a basis for a modification.").

Additionally the court held “In addition, the fact that [the former wife] has made a few local moves since entry of the final judgment also does not establish a substantial change in circumstances. In fact, the final judgment originally recognized that she would be moving out of the marital home, and that her future residence was ‘not known.’ The final judgment further provided that ‘for purposes of school boundary determination, registration and enrollment, the Mother's address shall control.’ As anticipated in the final judgment, [the former wife] moved away from the marital home. And she eventually landed at an address in the same school district that was closer to the child's present middle school. Relocation under these circumstances does not amount to a substantial change in circumstances allowing for modification of the original parenting plan. We acknowledge the trial court's finding and record support for the conclusion that [the former wife] inadequately informed her ex-husband about their son's change of schools. But the existence of periodic communication failures between the parties is also not a basis for finding a substantial change in circumstances.”

Modifying timesharing in Florida may not be an easy task considering that a court has more discretion in creating a parenting plan than it does in modifying one. Schedule a consultation with a Miami child custody lawyer to determine if modification is possible in your case.