Posted by Nydia Streets of Streets Law in Florida Child Custody

Does a parent’s move to a home closer to the children justify modification of a Florida parenting plan? This was at issue in the case Bryan v. Wheels, 1D19-2670 (Fla. 1st DCA May 1, 2020) in which the former husband appealed a court’s order modifying a parenting plan on the basis of the former wife’s relocation to within 35 miles of the children’s residence.

When the parties divorced, the father was initially granted primary time-sharing with the parties’ children in Florida with the mother living outside of Florida. They agreed to modify the parenting plan twice - once when the mother moved to Florida they agreed to an equal time-sharing schedule, and a second time when the mother moved to New Jersey and the parties agreed the father would have primary time-sharing with the mother having time-sharing during summer and every other spring break. Subsequently, the mother again relocated back to Florida and requested that the parties resume the former equal time-sharing they exercised during the first modification of the parenting plan. The father refused and the mother filed a petition for modification. Based on the mother’s relocation to Florida, the court granted the modification and the father appealed.

The appellate court reversed, holding it was error for the court to modify the parenting plan based solely on the mother’s relocation. The court held “The father's argument is correct. The final judgment found a substantial change in circumstances simply based on the mother's move back to Florida. But Florida law doesn't consider such a move—by itself and without any showing of how that move impedes the present timesharing plan—to necessarily constitute a substantial and material change in circumstances. [citations omitted]. In addition, the trial court didn't address whether the mother's move back to Florida—her third interstate move in 6 years—was anticipated by the parties when they last modified the plan. Modification orders ‘need specificity and substance to be affirmed,’ and here we see no indication that the ‘unanticipated’ factor in § 61.13(3) was part of the analysis. [citation omitted]. Finally, competent, substantial evidence doesn't support the court's best-interests finding. While ‘there is no statutory requirement that a trial court engage in a discussion as to each of the factors of section 61.13,’ Neville v. McKibben, 227 So. 3d 1270, 1273 (Fla. 1st DCA 2017), competent, substantial evidence must nonetheless support the best-interests finding.”

Modifying a Florida parenting plan presents a higher burden than initially creating a parenting plan. If you are considering the entry of a Florida parenting plan or need help modifying one, contact a Miami child custody lawyer for a consultation.