Posted by Nydia Streets of Streets Law in Florida child custody

What is a substantial change in circumstances that will warrant the modification of a Florida parenting plan? While there is no one correct answer, one recent case sheds light on what may be considered a substantial change in circumstances: Izquierdo v. Del Valle, 4D19-1055 (Fla. 4th DCA April 22, 2020).

The parties entered a parenting plan and at that time, the mother lived in Cape Coral while the father lived in Broward County, Florida. According to the parenting plan, the mother had time-sharing every other weekend. Years later, the father petitioned for relocation to Haines City, Florida and in response, the mother petitioned for relocation alleging “that the father was arrested on domestic violence charges, that he moved to Polk County, and that she had to ‘drive all the way back and forth for visits.’ She also alleged that she had ‘to sign out my other kids early from school in order to make it by 5 [p.m.] or I'm not allowed visits [with] my son.’ She alleged that the father ‘has canceled on me multiple times and does not allow me to visit with my son on my scheduled days.’ The mother also alleged that the father's wife is ‘violent’ and had ‘attacked’ her on two occasions during exchanges. She asserted that modification was in the child's best interests due in part to the violence. As relief, she requested that the father not be accompanied by his wife when they exchange the child, and that they meet ‘halfway’ for exchanges. She also proposed, in the alternative, that the father meet her at the Polk County police station ‘by his home by 6 [p.m.]’”

The father filed a motion to dismiss the mother’s petition based on her failure to allege a substantial change in circumstances. The trial court granted the motion and the mother appealed. The appellate court reversed holding “Considering the distances of the parties' residences from one another at the time the parenting plan was entered and after the father's relocation, the father's relocation, standing alone, would not amount to a substantial change in circumstances. Additionally, to the extent his relocation exacerbated any problems the parents had with communication and cooperation in following the parenting plan, this does not amount to the sort of change in circumstances warranting a modification. See Ragle v. Ragle, 82 So. 3d 109, 113 (Fla. 1st DCA 2011). However, the mother also alleged that she had trouble making the 5:00 p.m. pickup time because her other children must be taken out of school first. And she also alleged that the father's wife attacked her during exchanges. ‘A claim should not be dismissed with prejudice 'without giving the plaintiff an opportunity to amend the defective pleading, unless it is apparent that the pleading cannot be amended to state a cause of action.' [citations omitted] Here, it is not apparent that the mother cannot plead a substantial change in circumstances. Accordingly, we reverse.”

So the mother will have an opportunity to amend her pleading to state a change in circumstances. If you are not sure whether or not your case would qualify for a modification of time-sharing, schedule an appointment with a Miami child custody lawyer to go over how the law may apply to your case.