Are you having issues with your parenting plan? Is your current time-sharing schedule no longer working? If the answer is yes, then it is time to modify your current arrangement.
It is always best to pursue a modification rather than wait and do nothing until the other parent brings a motion for enforcement and/or contempt.
Even when modification is pursued, both parents are still obligated to comply with the provisions of their current parenting plan and must follow the time-sharing schedule that is in place until a new order is issued granting the relief requested in the petition.
However, filing for a modification alone does not mean that the modification will be granted. In order to be successful in your modification proceeding, you must show the Court that there has been a substantial, material, and unanticipated change in circumstances and that the modification is in the best interests of the minor child(ren). This is a high evidentiary burden for a parent to meet.
Pursuant to Section 61.13(3) of the Florida Statutes, a determination of the best interests of the child is made by evaluating all of the factors affecting the welfare and interests of the particular child(ren) and the circumstances of the family, including, but not limited to:
(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.
Unless you can meet this two-part test, it is highly unlikely that the requested modification will be granted.
In other words, in order to prevail in your modification suit, the change may not be temporary, voluntary, or trivial and the proposed modification must be in the child(ren)’s best interests as determined by evaluating all these various statutory factors.
For example, the Courts have found evidence of parental alienation, interference with the child(ren)’s communication with the other parent, failure of a parent to return the child(ren) pursuant to the terms of the current time-sharing schedule, false allegations of abuse against a parent, as well as bad-mouthing of the other parent to the child(ren) to be sufficient to constitute a substantial change in circumstances to warrant modification. Likewise, unilateral action on the part of a parent affecting the child(ren)’s health and general well-being when there was an award of shared parental responsibility has also been found to constitute a substantial change that warrants a modification.
However, each case is different and is evaluated based on its own set of facts. No two cases are alike. Consequently, the degree and frequency of one party’s misconduct is crucial as the Courts favor stability for the children and would rather keep the status quo unless a change is truly warranted. The fact that the parents don’t get along and exercise different parenting styles, without more, is generally not enough for a modification. The Courts will not disrupt the child(ren)’s established routine just because one parent disagrees with the other’s parenting. The fact that one parent responds to bad grades and bad behavior through an authoritative parenting style and the other parent does so through a permissive parenting style would not make one parent right and the other parent wrong and a respondent in a modification proceeding. In fact, it has been found that having parents exercise differing parenting styles can actually be a good thing for a child. On the other hand, modification will generally be warranted if it shown that a parent has exposed the child(ren) to drugs, alcohol and/or other dangers.
Also, it is quite common for a parent who is pursuing a modification of the time-sharing schedule to also seek a modification of the child support, especially if the proposed time-sharing will result in a change to the number of overnights. However, a change in the number of overnights alone does not always mean modification of child support, especially when other factors are reviewed such as the parties’ current monthly net income, the cost of health insurance for the child(ren) as well as the daycare costs. Furthermore, “the difference between the existing monthly obligation and the amount provided for under the guidelines must be at least 15 percent or $50, whichever amount is greater, before the [C]ourt may find that the guidelines provide a substantial change in circumstances.” See Section 61.30(1)(b), Florida Statutes.
However, “a parent’s failure to regularly exercise the court-ordered or agreed time-sharing schedule not caused by the other parent which result[s] in the adjustment of the amount of child support …[is] deemed a substantial change of circumstances for purposes of modifying the child support award. A modification pursuant to this paragraph is retroactive to the date the noncustodial parent first failed to regularly exercise the court-ordered or agreed time-sharing schedule.” See Section 61.30(11)(c), Florida Statutes. This means that when a parent fails to abide by the current time-sharing schedule a modification may be sought.
Consequently, unless you can meet the two-part test to modify your parenting plan and time-sharing schedule and can show the Court that there has also been a substantial change in circumstances to warrant a modification of child support, the current arrangement will remain in place. Your petition for modification should reflect your legitimate concern(s) about your child(ren)’s well-being and not an attempt to escape your financial obligation for your child(ren) and/or an attempt to get back at your ex.