Posted by Nydia Streets of Streets Law in Florida Child Custody
Under Florida law, a parenting plan may be modified based on a showing of a substantial change in circumstances that was not contemplated at the time of entering the parenting plan. This applies when a parent wants to modify parental responsibility. In the case Socol v. Socol, 4D18-3565 (Fla. 4th DCA March 4, 2020), a petition for modification was filed in which the mother requested sole parental responsibility.
The former wife presented evidence to the trial court that the former husband was allegedly difficult to communicate with concerning the welfare of the children. After a hearing, the court awarded sole parental responsibility to the former wife. The former husband appealed, arguing it was error for the court to do so without making a finding that shared parental responsibility would be detrimental. The appellate court reversed, holding “The trial court was correct to utilize ‘the best interests of the child’ standard according to sections 61.13(2)(c) and (3). However, as we held in Aranda, ‘utilizing the best interest of the child standard does not obviate the necessity of a specific finding [under section 61.13(2)(c)2.] that shared parental responsibility would be detrimental to the child before awarding sole parental responsibility to a parent.’ [. . .] Accordingly, we reverse and remand for the trial court to reconsider the issue of whether to modify the parties' shared parental responsibility to the former wife's sole parental responsibility in light of the statutory requirement to determine whether shared parental responsibility would be detrimental to the child. The trial court may, in its discretion, either take additional evidence or rule on the record presently available. If the trial court finds that shared parental responsibility would be detrimental to the child and that the former wife should be awarded sole parental responsibility with ultimate decision-making regarding the minor child, then the trial court shall amend the supplemental final judgment to expressly include that finding.”
The former husband also appealed the court’s award of attorneys’ fees and costs to the former wife in contradiction of the parties’ stipulation on the issue. The parties previously agreed that the court was only to consider fees incurred by the former wife from a certain date until trial. They agreed those fees amounted to 38.9 hours at $400 per hour. Despite this stipulation, the trial court granted the former wife attorneys’ fees and costs retroactive to the date of the filing of her petition, resulting in a double payment to the former wife since the parties also stipulated that the former husband paid those fees already. The appellate court reversed, holding “Here, the parties' stipulation regarding the former wife's attorney's fees appears to have been properly entered into and relates to a matter upon which it was appropriate to stipulate. The parties' stipulation does not appear to be ambiguous or in need of clarification, modification or interpretation. Thus, the trial court erred in not following the stipulation.”
If you are considering a modification of your Florida family law final judgment, or you have been served with notice of a modification, contact a Miami family law attorney to assist you with your case.