Posted by Nydia Streets of Streets Law in Florida Child Custody
In order to modify a Florida parenting plan, a party must file a petition and not a motion. A petition is different from a motion because it requires that a process server deliver the petition to the opposing party and the opposing party has the opportunity to respond with an appropriate pleading. This was discussed in the case Patel v. Patel, 1D20-3231 (Fla. 1st DCA July 19, 2021).
The parties were divorced in 2016. Their parenting plan gave the former wife majority time-sharing with the former husband visiting the children every other weekend and every Wednesday evening in addition to a summer time-sharing plan. Three years later the former husband filed a motion for contempt, alleging the former wife did not cooperate in adjusting the time-sharing schedule in light of his work schedule, and he requested a parenting coordinator. After a hearing on the motion, the trial court ruled the former husband would be able to change one of his alternating weekends every month with advance notice to the former wife. There was no finding of a substantial change in circumstances by the court. The former wife appealed.
The appellate court noted “First, Florida Family Law Rules of Procedure 12.110(h) requires that any action to modify a shared parenting plan must be initiated by a supplemental petition for modification, not by a motion. In fact, this Court has held that a party seeking to change the ‘status quo’ of a dissolution final judgment must do so by a supplemental petition with proper service of process, and that the failure to do so is reversible error.” The court continued “Here, the basis for the modification request was that the Former Husband was an emergency room doctor with a varying schedule. Yet, the record does not establish that the Former Husband’s current scheduling challenges are substantially different from his situation as reflected in the 2016 final judgment. Thus, there was no legal basis to modify the shared parenting plan.” The trial court’s order was therefore reversed.
If you need help understanding if an how a modification will occur in your case, schedule a meeting with a Florida child custody lawyer.