Posted by Nydia Streets of Streets Law in Child Custody
To modify a parenting plan in Florida, a court must make a finding that there has been a substantial change in circumstances which was not contemplated at the time of entry of the final judgment. Additionally, the court must find a modification is in the best interest of a child - a parenting plan usually cannot be changed because a parent changes his or her mind. A modification was sought in the case Romeo v. Romeo, 2D19-3237 (Fla. 2d DCA November 20, 2020).
The former husband sought to modify a parenting plan entered as part of the parties’ divorce proceeding in 2007. After a hearing, the trial court entered an order granting the former husband’s petition, modifying holiday time-sharing and granting the former husband additional overnight time-sharing. The former wife appealed, arguing there was no finding of a substantial change in circumstances as required under Florida law.
The appellate court noted from the outset that “The failure to include that finding—perhaps the most important determination a family court must make in a modification proceeding—will typically require reversal of a judgment that modifies a prior judgment's parenting plan. [. . .] We cannot glean from this judgment or this record whether the circuit court would have deemed the evidence before it as having met the high threshold section 61.13(3) has set. And we, as an appellate court, are not in a position to make that initial determination.”
The former husband argued the former wife stipulated at trial that there had been a substantial change in circumstances. The appellate court rejected this argument, noting “The court included no such finding in its supplemental final judgment, but more importantly, that is simply not reflected in the record. The Former Wife did agree to changing overnight timesharing with the Former Husband for every other Sunday. But her counsel was clear, unequivocal, and adamant that her agreement was not a stipulation that there had been a substantial, material, and unanticipated change in circumstances. To the extent the circuit court construed it as such, the court was in error.”
Know what to expect before you file your petition for modification. Schedule a consultation with a Miami child custody lawyer to understand the next steps in your case.