Posted by Nydia Streets of Streets Law in Florida Child Custody
What is the effect of a default in a Florida child custody case? Despite a default, a court must find that parenting plan is in the best interest of a child. Rather than relying on a technicality such as a default, the court must still determine that, for example, a change in time-sharing is in the best interest of a child. This was an issue in the case Oria v. Velastegui, 3D24-1169 (Fla. 3d DCA December 18, 2024).
The parties’ original parenting plan was ratified by a final judgment of paternity while they were still living together. The parenting plan stated it would go into effect once the parties no longer resided together, and included a regular, equal time-sharing schedule with no mention of a holiday or school break schedule. The parties eventually separated, and the father filed a petition to modify the parenting plan, specifically requesting that the following provisions be added or addressed: (i) holiday and school break timesharing with the child; (ii) the methods and frequency of the parties’ communications with the child; (iii) traveling abroad with the child; (iv) the manner for holding the child’s passport; and (v) the parties’ respective rights to claim a child tax credit.
A default was entered against the mother, and the court held a non-evidentiary hearing. At the hearing, the parties agreed as to communication methods with the child, but did not reach an agreement on the remaining issues. The trial court ruled there was no showing of a substantial change in circumstances, and that it could not rewrite the terms of the parties’ settlement agreement. It dismissed the remaining issues in the case. The father appealed.
The appellate court noted from the outset “The father’s principal argument is that, by virtue of the mother’s default, the trial court was required to accept as true the modification petition’s conclusory allegation that ‘[t]here have been substantial changes in the parties’ circumstances since the date of the Final Judgment that are substantial, material, and permanent that warrant a modification,’ and that the trial court reversibly erred in determining otherwise. Under the facts and circumstances presented in this case, we conclude that the trial court did not err in dismissing the father’s petition as to the father’s holiday and school break timesharing claim. But we agree with the father with regard to issues not addressed in the paternity agreement.”
With respect to the holiday time-sharing request, the court held “With respect to the father’s holiday and school break timesharing claim, the modification petition alleges that the change in circumstances warranting modification is that the parties have stopped living together. The problem with this argument, though, is that the paternity agreement’s parenting plan – which was incorporated into the final judgment of paternity that the trial court retained jurisdiction to enforce – expressly adopts a detailed timesharing schedule that becomes effective “[i]n the event the parties no longer reside together.” In the event an attachment to a pleading contradicts the pleading’s allegations, the attachment prevails. [. . .] Thus, notwithstanding the mother’s default, with regard to holiday and school break timesharing, the trial court was not required to accept, as true, the modification petition’s allegations that a substantial and material change in circumstances occurred, warranting a modification of the parenting plan. [. . .] Because the paternity agreement expressly contemplates the alleged change in circumstances, the trial court correctly dismissed this portion of the father’s petition. We, therefore, affirm this aspect of the challenged order.”
However, with regard to the other issues not ruled upon - the tax dependency exemption, travel with the child, and possession of the child’s passport - the court ruled “Unlike holiday and school break timesharing, the other modifications sought in the modification petition [. . .] are not addressed in, much less contradicted by, the paternity agreement. With regard to these three issues, the modification petition’s alleged change in circumstances are properly pled and, by virtue of the mother’s default, the trial court is required to accept, as true, that there is a substantial and material change in circumstances warranting a modification of the paternity agreement.” The court concluded “We, therefore, reverse the challenged order as to these remaining claims. On remand, the trial court shall conduct an evidentiary hearing to determine whether it is in the best interest of the parties’ minor child to modify the paternity agreement as it relates to these issues.”
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