In a divorce proceeding where the couple has minor children, the trial court determines the initial custody arrangement based upon the best interests of the child. To determine the child’s “best interests” the court takes into consideration a number of factors, including:
(a) The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required.
(b) The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.
(c) The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent.
(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
(e) The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of either parent with a child.
(f) The moral fitness of the parents.
(g) The mental and physical health of the parents.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
(j) The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to, the child’s friends, teachers, medical care providers, daily activities, and favorite things.
(k) The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, and daily schedules for homework, meals, and bedtime.
(l) The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child.
(m) Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect, regardless of whether a prior or pending action relating to those issues has been brought. If the court accepts evidence of prior or pending actions regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect, the court must specifically acknowledge in writing that such evidence was considered when evaluating the best interests of the child.
(n) Evidence that either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect.
(o) The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties.
(p) The demonstrated capacity and disposition of each parent to participate and be involved in the child’s school and extracurricular activities.
(q) The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse.
(r) The capacity and disposition of each parent to protect the child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child.
(s) The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs.
(t) Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.
Seeking a Child Custody Modification (Timesharing)
Once a custody determination has been made, there is a presumption in favor of the reasonableness of the original decree. So, in order to justify disturbing it, the parent seeking a modification must show that there has been a substantial, material change in circumstances that was unforeseen at the time of the original decree. If the party seeking modification can show a substantial, material, unforeseen change in circumstances, they then must show that a modification to the original decree would be in the child’s best interests.
What does a “substantial change in circumstances” mean?
As with most areas of law, the standards and definitions in Florida family law are continuously changing and evolving. This article outlines the history of the “substantial change” tests various Florida courts have employed over the years. As you’ll see, one of the most recent changes appears to eliminate a showing of “detriment” to the child if the order is not modified, the result being a slightly lower standard of proof in order to secure a modification.
However, it is still quite challenging to overcome the court’s initial determination. Here are some examples where Florida courts determined there was NOT a substantial change in circumstances:
- Temporary changes in the child’s living arrangements. (E.g., Child used to live with Mom but parents decided for the next school year she would live with Dad.)
- Parent’s informal agreements. (E.g., Mom allows an additional night’s sleepover with Dad.) This would discourage parents from making decisions in the child’s best interests.
- When one parent relocates.
- Parents’ inability to communicate or bitter relations.
What IS enough for a showing of substantial change in circumstances?
There is no set formula for a showing of substantial change, so it is important to have an experienced, knowledgeable family law attorney to review your case and advocate for your rights. Contact George Gelb for a free consultation – (561) 748-8000
Here’s one example of when the court found a substantial change in circumstances: In Wade v. Hirschman, 903 So.2d 928 (Fla. 2005), the prevailing case law for the “substantial change” test, the Court found that alienating the other parent, plus contempt and ongoing violations of shared parental responsibility were enough to meet the substantial change requirement.
