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 which was not contemplated at the time of entry of the plan. The standard does not require a court to consider whether or not the status quo will be detrimental to a child. This was an issue in the case R.S. v. S.K., 2D20-454 (Fla. 2d DCA March 12, 2021).
In 2014, a final judgment of paternity was entered granting the mother majority time-sharing with the parties’ two minor children. In 2019, the father petitioned for a modification of the parenting plan to award him majority time-sharing and for the court to order supervised visits for the mother. The basis of this request was the sexual abuse by the mother’s husband of the parties’ daughter over a significant period of time. After presentation of the father’s case, the trial court entered a directed verdict in favor of the mother denying the father’s request to change the parenting plan, noting the mother’s husband was in jail awaiting trial and facing a life sentence, and that the mother had begun divorce proceedings against him. The court also cited the mother’s agreement to prevent contact between the parties’ daughter, her soon-to-be ex-husband and the husband’s family. The father appealed.
The appellate court reversed the trial court’s order, holding “In this case the trial court committed legal error when it rejected the modification petition because it concluded that the sexual abuse of the child did not pose a permanent threat of harm to the children. Florida's child custody statute provides that a judgment establishing parental responsibility, a parenting plan, or a time-sharing schedule may be modified upon ‘a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child.’” The court continued “Once the trial court determines that there has been a substantial and material change in circumstances since the prior judgment on time sharing, it must then apply the best-interests-of-the-child test pursuant to section 61.13(3). Wade expressly rejected longstanding caselaw holding that modifying a custody decree required evidence that the change in circumstances resulted in substantial or permanent harm to the affected child. ‘Requiring proof of detriment is . . . not an element of the substantial change test necessary to modify a child custody award.’”(internal citations omitted).
Understanding how the law may apply to your case in determining whether a substantial change in circumstances has occurred is important before you file your petition for modification. Schedule a consultation with a Miami child custody lawyer to discuss your case.