Posted by Nydia Streets of Streets Law in Florida Child Custody
In order to modify a Florida parenting plan, a parent must show there has been a substantial change in circumstances that was not contemplated at the time of entering the parenting plan. Additionally, the other parent must have notice and an opportunity to be heard by the court before a parenting plan can be modified. This was an issue in the case Ceballos v. Barreto, 4D22-104 (Fla. 4th DCA April 13, 2022).
The parties entered a parenting plan which provided that when their daughter was set to begin attending school, they would attempt to agree on a school at least six months prior to the registration date. If they were unable to agree, the parenting plan stated “in no event will the location of any school she attends be more than 50 (fifty) miles from the former marital residence . . . Palm Beach Gardens, FL 33410.” The mother filed a motion to enforce, accusing the father of unilaterally enrolling the child in a school near his home in Palm Beach Gardens. The father filed a countermotion seeking to approve the child’s enrollment as compliant with the parenting plan. He also filed a petition for modification, seeking to modify time-sharing and educational issues.
A hearing was held on the motion for enforcement, and father’s countermotion. The court made findings that during the mother’s time-sharing, the child was excessively absent and was failing kindergarten. The court decided to confirm the father’s school choice and ordered that the child would reside with the father during the week and temporarily only having weekend time-sharing pending the end of the school year or the resolution of the father’s petition for modification. The mother appealed.
The appellate court reversed the portion of the order that modified time-sharing because it violated the mother’s due process rights. The court held “We recognize that there are emergency situations that permit the trial court to temporarily modify time-sharing in post-dissolution cases pending modification hearings, but this was not argued below or on appeal, nor most importantly, noticed for the hearing.[internal citations omitted]. Consequently, we reverse that portion of the order that reached the time-sharing issue and thus exceeded the scope of the hearing. We remand for the trial court to strike that provision.”
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