Posted by Nydia Streets of Streets Law in Florida Child Custody
When a parent loses timesharing as a result of modification of a final judgment in Florida, is the court required to specify steps the parent must take to regain timesharing? This issue arose in the case C.N. v. I.G.C., 5D19-473 (Fla. 5th DCA March 6, 2020) in which the mother appealed the trial court’s modification of her parenting plan to grant the father primary custody.
The parties were never married and the father previously filed a petition to establish paternity. A settlement agreement was entered in which the parties agreed the mother would have primary residential care of the child while the father was entitled to 40% overnights per year. After four years of following the parenting plan, co-parenting difficulties arose between the parties, resulting in the mother unilaterally cancelling the father’s timesharing and filing a motion to suspend his timesharing. The father then filed a petition for modification. After appointment of a guardian ad litem and a hearing, the trial court found the mother’s behavior (which included unfounded allegations of child abuse) to be detrimental to the child. The court ordered that the father have sole parental responsibility and primary residential care of the child. The mother appealed.
The appellate court upheld the trial court’s ruling, holding “Mother argues that the trial court based its modification order only on potential alienation, and therefore the order is insufficient as a matter of law because such a finding is irreconcilable with the statutory requirement of a ‘change’ in circumstances. While we do not dispute Mother's characterization of the statutory requirement, we disagree that the order was based only on speculation that harm to the child may occur. To the contrary, the trial court's order found that Mother's behavior ‘caused her’ to act in a manner detrimental to the child and ‘rendered her unable’ to co-parent effectively. The trial court further found that the best interests of the minor child had been ‘negatively impacted.’ Thus, in addition to the trial court's stated concerns that Mother's behavior may cause alienation, it separately found that detriment to the child had occurred. The trial court explained that such detriment constituted a substantial, material, and unanticipated change in circumstances such that modification was in the child's best interests. And, the trial court's determinations are supported by competent substantial evidence. It makes no difference that the record may include competent substantial evidence that would support some other result.”
The court further held “As a separate basis for reversal, Mother argues that even if modification was warranted, the trial court's order is still legally flawed. In support thereof, Mother argues that the trial court's order lacks any ‘concrete steps’ or benchmarks that Mother could work toward to regain her lost timesharing, does not specify ‘what proof’ the court would need from Mother, and does not say when Mother may petition the court to reestablish her timesharing rights. Mother's argument fails to recognize, however, that section 61.13(3) provides a clear standard applicable to modifying parenting plans, including timesharing schedules, that neither authorizes nor requires the trial court to set forth the specific steps necessary to reestablish timesharing.” The appellate court certified conflict to the Florida Supreme Court regarding a different holding in other district courts of appeal, so the Florida Supreme Court may take up this issue for resolution in the near future.
Losing timesharing or parental rights can be devastating. For that reason it is important that before your modification case goes forward, you contact a Miami child custody lawyer to discuss your case.