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Florida: Parental Impasses in the Land of “Should” and “Won’t” by Dana E. Quigley, Esq.

Most experienced family law attorneys have the wisdom to know the difference between what “should" and what “will" happen in certain families. In fact, it is refreshing to witness what “should" happen actually come to fruition when the parties, while no longer a couple, join together to work cooperatively in jointly raising their children. So, this begs the question of what happens when the land of “should" becomes the land of “won’t" and the parents are incapable of even agreeing to disagree regarding their minor children?

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. Florida Statute § 61.13(2)(c) “grants the Court with continuing jurisdiction to modify custody orders but does not state the conditions necessary for modification. We therefore look to case law for guidance on how to make this determination." Wade, 903 So.2d at 933 (Fla. Sup. 2005). What constitutes a change in circumstances is determined by the facts of each case.

Substantial Change in Circumstances

and Parental Impasse

Each parent typically has equal rights to make daily decisions on behalf of their minor children and the parents “should" confer and jointly make all major decisions affecting the welfare of their children. Each parent “should" make decisions regarding day-to-day care and control of the children while the children are with that parent; and, a parent who makes an emergency decision “should" share the decision with the other parent as soon as reasonably possible. Along these same lines, the parents “should" confer and jointly make major decisions regarding the children’s education, health care, and other responsibilities unique to a particular family.

What happens when the land of “should" becomes the land of “won’t" and the parents are incapable of even agreeing to disagree?

The Florida courts have held that Shared Parental Responsibility assumes that the parties can come to an agreement on the welfare of their children. Watt v. Watt, 966 So.2d 455 (Fla. 4th DCA 2007). In instances where the parties cannot and will not come to an agreement, the trial court can determine that such an impasse constitutes a substantial change in circumstance, requiring modification of the final judgment in the best interest of the children." Watt v. Watt, 966 So.2d 455 (Fla. 4th DCA 2007). Because the parties involved in Watt could not agree on a private school for the minor child, the Court in that case held that the parties’ impasse and inability to agree “ . . . constituted a substantial change in circumstances which was unanticipated at the time of the agreement, since the agreement provided no mechanism to resolve an impasse on such a matter vital to the child." Id. at 456-457.

Accordingly, when a parental impasse is reached with respect to an agreement regarding the welfare of the minor children, the Florida courts have held that the trial court has the discretion under the shared parental responsibility statute to resolve such issues under the best interests of the child test.

Section 61.13(2)(c)2.a., Fla. Stat. explicitly provides that “In ordering shared parental responsibility, the court may consider the expressed desires of the parents and may grant to one party the ultimate responsibility over specific aspects of the child’s welfare or may divide those responsibilities between the parties based on the best interests of the child. Areas of responsibility may include education, health care, and any other responsibilities that the court finds unique to a particular family." Id. See, Sotnick v. Sotnick, 650 So. 2d 157, 160 (Fla. 3d DCA 1995); Hancock v. Hancock, 915 So. 2d 1277 (Fla. 4th DCA 2005); see also Vazquez v. Vazquez, 443 So. 2d 313 (Fla. 4th DCA 1983) (trial court properly exercised its discretion under the shared parental responsibility statute by ordering that the minor children would attend school chosen by father); Watt v. Watt, 966 So.2d 455 (Fla. 4th DCA 2007).

Similar to the factual issues and legal analysis contained in Watt, the Court of Appeal in the Hancock case held that the parties had reached an impasse with respect to the minor child’s education and remanded the case back to the “ . . . trial court to designate which parent should be given the responsibility for decisions concerning the child’s education as part of the order of shared parental responsibility." Hancock v. Hancock, 915 So. 2d 1277 (Fla. 4th DCA 2005).

The Florida case law is also replete with one parent being appointed the ultimate decision making power over the minor children’s health care decisions, which are also subject to the trial court’s discretionary authority and follows the same analyses.

Accordingly, recalcitrant parents who seemingly lack the emotional maturity or wherewithal to jointly parent their minor should be aware of the ultimate legal pitfalls. Not only is this infighting unhealthy for both the parents and the minor children, but this inability to voluntarily cooperate may lend itself to one parent losing decision making authority over important aspects of his or her minor children’s upbringing.

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