Divorce Attorney Scott J. Stadler

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You can seek a modification of custody if you meet certain legal requirements. You can also seek a modification of child support under certain circumstances.

Everyone knows the term “custody”, right? You have heard it before “I want custody and he can have visitation”. Actually, the terms “custody” and “visitation” are not used in the courtroom any longer. The new term is “timesharing”. What is timesharing? In simple terms it is a schedule for the children spend with both parents.

You may need to make a change to the Court ordered time-sharing schedule. The change is called “modification”. A modification of your time-sharing schedule is a legal process that must go through the courts.

Before you do anything, you must get a copy of your final court order or final judgment of dissolution of marriage. Many times a court order or final judgment refers to a divorce settlement agreement or general magistrate’s finding, which you will also need to copy. If you never had a court order, then you cannot change or “modify” one.

In modifying a time-sharing schedule the Courts ultimate concern is the best interest of the child. The burden of proof to change a time-sharing schedule is significant. A time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child.

Be mindful that a modification of a timesharing schedule is a different standard of proof than when a court establishes a timesharing schedule for the first time. When a timesharing schedule is established for the first time, the Court has broad discretion to make a determination after considering all of the statutory criteria.

In contrast, a trial court does not have the same broad discretion to modify custody. The party seeking modification of custody carries an extraordinary burden of proving both elements of two–pronged test. The party must demonstrate that there has been a substantial and material change of circumstances since the time of the final judgment of divorce, and that the welfare of the child will be promoted by the change in custody.

Interestingly, a desire to relocate alone, as a matter of law, is not a substantial change in circumstances sufficient to warrant modification of custody. Segarra v. Segarra, 947 So.2d 543, 547 (Fla. 3rd DCA 2006). Relocation alone, even if to another state, was not a substantial change in circumstances. Ogilvie v. Ogilvie, 954 So.2d 698, 701, (Fla. 1st DCA 2007); A custodial parent’s move to a foreign state, without more, is not a substantial change of circumstances that would support a modification of custody. Sotomayor v. Sotomayor, 891 So.2d 559, 561 (Fla 2nd DCA 2004);

Pursuant to Florida Statute 61.13 (3)(a-t) a determination of the best interests of the child in modification of timesharing cases looks at the following criteria:

  1. (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.
  2. (b)The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.
  3. (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.
  4. (d)The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
  5. (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.
  6. (f)The moral fitness of the parents.
  7. (g)The mental and physical health of the parents.
  8. (h)The home, school, and community record of the child.
  9. (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.
  10. (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.
  11. (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.
  12. (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.
  13. (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.
  14. (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.
  15. (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.
  16. (p)The demonstrated capacity and disposition of each parent to participate and be involved in the child’s school and extracurricular activities.
  17. (q)The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse.
  18. (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.
  19. (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.
  20. (t)Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.

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