Florida – Modification of Timesharing (Visitation) and Parental Responsibility by Dana E. Quigley, E
A frequent question in Florida is what does the trial court consider in modifying a timesharing (visitation), parenting plan, or parental responsibility in the state of Florida? Florida Chapter 61 offers specific criteria.
The modification of a parenting plan and timesharing schedule requires a showing of a “substantial, material, and unanticipated change of circumstances." Fla. Stat. § 61.13(2)(c) and (3). The substantial change test applies to modification of all custody agreements or decrees. Wade v. Hirschman, 903 So.2d 928 (Fla. Sup. 2005). Under the Wade 2-part test, the moving party must show both that (1) the circumstances have substantially and materially changed since the custody determination and (2) the child’s best interests justify the change. Id.
The Florida Legislature specifically states that it is the public policy of this state that “each minor child has frequent and continuing contact with both parents . . . and to encourage parents to share the rights and responsibilities, and joys, of childrearing." There is to be no favoritism for or against the father or mother of the child or for or against any specific time-sharing schedule when creating or modifying the parenting plan of the child.
As such, the trial court “shall" order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child. Evidence of domestic violence convictions creates a (rebuttable) presumption of detriment to a child.
For purposes of modifying parental responsibility, modifying a timesharing schedule, or parenting plan, “the best interest of the child shall be the primary consideration." “A determination of parental responsibility, a parenting plan, or 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. The “best interests" of the child is made based on the trial court’s evaluation of certain factors affecting the welfare of the particular child. The Florida statute 61.13(3)(a) through (t) specifically states that the court is to consider:
(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.
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, it is error for the court to modify the parental responsibility, parenting plan, or timesharing schedule.