Posted by Nydia Streets of Streets Law in Florida Child Custody

Prior Florida case law has held that a parent achieving sobriety may not be enough to constitute a change in circumstances that permits modification of a parenting plan that restricts the parent’s time-sharing based on substance abuse. However, a recent case clarifies this standard.

In the matter of Harrell v. Friend, 1D2023-1074 (Fla. 1st DCA May 8, 2024), the father was originally granted supervised visitation based on his substance abuse issues. The father subsequently filed a petition for modification of the parenting plan citing his sobriety, the unavailability of designated supervisors in the parenting plan, and the fact that he never tested positive for alcohol before any of the time-sharing he exercised under the plan. The mother filed a motion to dismiss alleging the father had not stated a substantial change in circumstances that was unanticipated and that met the requirements of the law. The trial court granted the mother’s motion and the father appealed.

The appellate court noted prior case law which held that sobriety was not enough to modify a parenting plan. However, the court clarified “Some Florida appellate opinions concerning modification make what appear to be sweeping statements about what can and cannot constitute a substantial, material, and unanticipated change in circumstances. However, in those cases, the trial court had conducted an evidentiary hearing to consider the specific facts asserted in the petition for modification.” The court continued “In the instant case, the former wife argues these passages from [cited cases] and similar cases stand for the rule that evidence of a party’s having overcome alcohol abuse or a mental health problem can never constitute a substantial and material change in circumstances sufficient to allow for modification of a parenting plan. However, we note that there is nothing in these opinions that states that the holdings were not specific to the facts of those cases. Furthermore, within the circumstances of a specific case, even if the fact that a party has overcome a prior substance abuse or mental health problem is insufficient, alone, to constitute a substantial and material change, it may well be sufficient when considered along with other related changes in circumstances, such as an improved ability to parent, improved parental relationship with the child, and decreased risk of harm to the child’s physical and mental well-being and development.”

The court concluded “In the instant case, the former husband’s allegation that he has overcome alcohol abuse through successful mental health treatment and medication could be a substantial and material change in circumstances allowing for modification of the parenting plan. His mental health and substance abuse issues factored against him in the original parenting plan entered in 2014, but he has not tested positive for alcohol use during supervised visits since then, despite former wife having requested multiple tests. Also, the age and preferences of the children are relevant, and the trial court should allow them an opportunity to be heard.”

The case was therefore reversed and remanded for the trial court to hold an evidentiary hearing. Schedule your meeting with a Miami child custody lawyer to understand how the law may apply to your case.