Posted by Nydia Streets of Streets Law in Florida Child Support

Usually when a parent seeks to modify child support in Florida, the court can modify the child support retroactive to the date the parent filed the petition for modification. There is an exception, however, which has to do with time-sharing. This was an issue in the case Hardwick v. Smith, 1D2022-3853 (Fla. 1st DCA December 27, 2023).

While the parties originally had a parenting plan which gave the mother primary residential care of their minor child, they later agreed for the father to have primary residential care of the child. The father did not seek modification of child support when the time-sharing was altered. Over a year later, the father sought modification, and the court only granted it retroactive to the date he filed his petition, rather than the date the child began primarily living with him. The court reasoned that the Florida Statutes did not authorize retroactive modification under these circumstances because it deemed the father to be a noncustodial parent. The father appealed.

The appellate court first noted that the statute does not define custodial and non-custodial parents: “In determining which parent is ‘custodial’ versus ‘noncustodial’ under § 61.30(11)(c), we consider the parties’ reallife situation and who is caring for the minor child. The party who is caring for and providing for the child’s basic everyday needs is the ‘custodial’ parent. See Hallberg v. State, 649 So. 2d 1355, 1357-58 (Fla. 1994) (concluding ‘that the term ‘custodial,’ absent a statutory definition, must be construed in accordance with the commonly understood definition as one having custody and control of another’; connoting ‘a duty or obligation to care’).”

Citing Fla. Stat. 61.13(11)(c) the appellate court reasoned the mother “became ‘the noncustodial parent [who] . . . failed to regularly exercise the court-ordered or agreed time-sharing schedule.” [. . .] Accordingly, [the father] qualified under the statute for retroactive modification from the date the child began to live with him full time, dependent upon the trial court’s determination of the parties’ comparative financial abilities.” The matter was reversed and remanded with instructions to award child support retroactive to the date the mother first stopped exercising regular time-sharing.

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