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:
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.