Posted by Nydia Streets of Streets Law in Florida Child Custody

Changing a Florida child custody order requires that a party file a petition for modification to put the other parent on notice of his or her intentions. What if a party requests modification and the other party responds with his or her version of a modified time-sharing schedule? Is this enough to put the petitioning party on notice that the other parent wants a modification as well? This was an issue in the case Roberts v. Diaz, 3D21-1912 (Fla. 3d DCA July 20, 2022).

The former husband filed a petition to modify the parties’ parenting plan because of his work schedule. He filed a proposed time-sharing plan, and the former wife responded with a proposed time-sharing plan of her own. After a two-day hearing, the trial court entered an order adopting the former wife’s proposed parenting plan after finding the former husband’s proposal did not meet the requirements of the parties’ parenting plan. The former husband appealed.

The appellate court rejected the former husband’s argument that the trial court had no jurisdiction to modify the parties’ parenting plan because the former wife had not filed a petition for modification. The court held “We disagree. It was the Former Husband who initiated the proceeding for modification of the timesharing schedule. The trial court was not bound to adopt the relief requested within Former Husband’s motion to modify the parties’ timesharing schedule. Generally, both parties must be given notice and an opportunity to be heard prior to any modification. [internal citation omitted]. Here, the Former Husband filed a motion to modify the timesharing schedule and included a proposed schedule. The Former Wife responded with her own proposed timesharing schedule. The trial court then conducted hearings on two separate days. Although we do not have the benefit of transcripts, the trial court’s order reveals that the Former Husband, Former Wife, and the Court Appointed Parenting Coordinator testified at the hearing. Therefore, the parties had adequate notice and an opportunity to be heard prior to modification.”

Schedule your meeting with a Miami child custody lawyer to understand how the law may apply to the facts of your case.