Posted by Nydia Streets of Streets Law in Florida Child Custody
Modification of a Florida parenting plan requires a showing of a substantial change in circumstances that was not contemplated at the time the original parenting plan was entered. In the case Kyle v. Carter, 1D19-2014 (Fla. 1st DCA February 19, 2020), the former husband sought a modification of a parenting plan which was granted by the trial court and appealed by the former wife.
The parties’ original parenting plan contemplated that the former husband would have supervised visits with the parties’ child. Timesharing exchanges were to take place at an aunt’s house. The former husband subsequently filed a motion for contempt against the former wife, alleging that she refused to bring the child to the aunt’s house for timesharing exchanges. After the court held the former wife in contempt on that issue, the former husband moved to modify the parenting plan based on the former wife’s willful failure to follow the same. The former husband sought to remove the requirement that the visits be supervised and he requested timesharing every other weekend. After a hearing, the trial court found modification to be in the best interest of the child and concluded there had been a substantial change in circumstances.
The former wife appealed the contempt order and the judgment modifying the parenting plan. As to the contempt order, the court found this to be a final order which required the former wife to appeal the same within 30 days. Since the former wife did not appeal timely, the court dismissed this appeal for lack of jurisdiction. However as it relates to the modification of the parenting plan, the appellate court agreed with the former wife that this should be reversed.
The court held “First, the trial court erred by not denying [the former husband’s] petition for modification as facially insufficient. [The former husband] did not plead a substantial, material, and unanticipated change in circumstances or allege how the child's best interests would be served by modification. [. . .] Second, the trial court erred by failing to make the necessary factual findings to support modification. [. . .] Here, the trial court found only that there had been ‘a substantial, material, permanent, and unanticipated change’ in the circumstances and that modification was ‘in the best interest of the minor child.’ The court did not explain how it reached either conclusion, so we reverse on this basis as well.”
Since a court has less discretion in modifying a Florida parenting plan than it has in establishing one, it is important that you understand the merits of your case before requesting a modification. Scheduling a consultation with a Miami child custody lawyer may be the first best step in understanding your rights.