Posted by Nydia Streets of Streets Law in Florida child custody

When a parent undermines the other parent’s attempts to meaningfully co-parent or make important decisions about a child’s welfare, a motion for contempt or enforcement may be appropriate. However, a petition for modification of a parenting plan may also be proper. This was an issue in the case Matheson v. Matheson, 2D21-1780 (Fla. 2d DCA December 7, 2022).

During their original divorce proceedings, a finding was made that the former husband had a deviant sexual attraction to teenage boys. As a result, the court created a parenting plan with safeguards that included requiring the former husband to attend therapy, pass polygraph exams, and prohibiting him from having children in his home other than his own children, among other requirements. In 2015, the court modified the parenting plan to allow the former husband to have other children in his home only while his children were with him, and requiring the male children to wear longboard shorts while at the former husband’s home.

In 2017, the former wife petitioned for modification, alleging several changes that included the former husband not attending required therapy, an increase in his risky sexual behavior toward children, and his failure to confer with the former wife on decisions impacting the children. The former husband argued the former wife’s petition should be dismissed based on res judicata and that her allegations were conclusory. The trial court agreed and dismissed the former wife’s petition with prejudice. She appealed.

The appellate court reversed, holding “The trial court erred by concluding that the allegations in the mother's second amended petition were facially insufficient because she alleged that since the entry of the original judgment and the 2015 modification, the father had engaged in risky behaviors and a course of conduct with respect to the children's healthcare and education, which amounted to a substantial, material, and unanticipated change in circumstances and that modification would be in the best interests of the children.”

The court continued “Although some of the mother's allegations—for example, the father's unilateral decisions to move and to change the children's pediatrician, refusal to share health information, and refusal to use the communication software recommended by the parenting coordinator—suggest that the parties have had ‘a lack of effective communication,’ [internal citation omitted], the mother has alleged more than a mere breakdown of communication. Rather, she alleged that since the entry of the partial final judgment and the 2015 modification, the father had engaged in a pattern of conduct that hindered her, her children's doctors', and her children's educational professionals' attempts to foster the children's health and education. These allegations, if proven, could establish a substantial, material, and unanticipated change in circumstances.”

What is more, the court concluded “The trial court noted that the mother's allegations about the children's healthcare and medical insurance were ‘best suited’ to be resolved by a motion for enforcement or contempt, not modification. However, the mother's allegations, even if they could also be the subject of a motion for enforcement or contempt, may properly be the subject of a petition for modification. In relevant part, section 61.13(3) provides that ‘[a]determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without 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 mother's allegations that the father has engaged in a course of conduct neglecting his children's healthcare and educational needs, refused to continue treatment for his psychological condition, engaged in behaviors that increased risks to his children that are associated with his condition, and made a series of unilateral decisions affecting the children's health and education could amount to a ‘substantial, material, and unanticipated change in circumstances.’”

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