Written by attorney Dana Elaine Quigley

Florida: The Law on Modification of a Parenting Plan,Timesharing, and Parental Alienation Syndrome

The modification of a parenting plan and timesharing schedule requires a showing of a “substantial, material, and unanticipated change of circumstances." § 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.

Florida courts have found substantial changes in circumstances to warrant modification based upon these facts:

In Wade v. Hirschman, 903 So.2d 928 (Fla. Sup. 2005) the Florida Supreme Court held that (a) evidence of parental alienation of the Father by the Mother; (b) failure of the Mother to cooperate with the parenting coordinator and comply with the parenting agreement (c) Mother’s unilateral change of the child’s school and therapist; and (d) a finding that Mother was in contempt of court for her actions relative to visitation supported a substantial change in circumstances that warranted a modification. Id. at 935. The trial court’s application of the enumerated factors set forth in § 61.13(3)(a) through (j) were then applied to determine that the prior arrangement was no longer in the best interests of the child. The Florida Supreme Court approved the substantial change test as followed by the trial court and agreed with the trial court’s decision. Id.

In Sanchez v. Hernandez, 45 So.3d 57 (Fla. 4th DCA 2010) the Fourth District Court of Appeal held that an acrimonious relationship and the lack of communication between the parents regarding the minor child is insufficient to establish a change in circumstances to warrant modification. However, this Court made distinctions (a) that while the Mother had threatened to prevent Father from exercising his timesharing, she never actually followed through with these threats; (b) the Guardian Ad Litem believed that Mother was capable of facilitating a relationship between the child and the Father; and (c) Father was allowed to visit the child so there was no evidence that the child was alienated from her Father. Id. at 62

Small v. Fluegel-Small, 943 So.2d 897 (Fla. 5th DCA 2006) held that the Father’s behaviors in (a) taking the child’s phone away and not allowing the child to call his Mother; (b) refusing to return the child after the timesharing period had concluded; (c) Father raised allegations of abuse in Nevada when those same allegations have previously been denied in Florida; (d) Father has also alleged abuse to DCF, which found no evidence to substantiate the allegations; (e) the experts opined that the ordeal was traumatic to the child; and (f) found that Father’s misconduct would likely continue to the detriment of the child demonstrated a substantial, material change in circumstances to warrant the modification to sole parental responsibility and limited visitation rights.

Schumaker v. Schumaker, 931 So.2d 271 (Fla. 5th DCA 2006) affirmed the trial court’s ruling that (a) the Father has attempted to parentally alienate the children which raises grave concerns about the children ever residing with the Father; (b) The Father has made degrading, obscene, and derogatory comments about the Mother and has advised the son that he does not have to listen to his Mother; and (c) the court expressed serious concerns regarding the Father’s moral fitness based on his alienating the children from the Mother. The Court concluded that the Father is in need of in-depth parental alienation counseling and that his actions toward the Mother will cause this family to need long, intense family counseling. Id. at 274-75. The Court also found that the Father had filed false and misleading domestic violence allegations against the Mother during the litigation and that the Father has misled the Court in an attempt to gain custody over the Mother. Id. at 275. The Court granted limited visitation privileges to Father until he received counseling and stopped his parental alienation and started to promote the Mother to the children. Id. at 275.

Tucker v. Greenberg, 674 So.2d 807 (Fla. 5th DCA 1996) held that the Father had shown a material change of circumstances that made the change of custody in the best interests of the children as (a) Mother created scenes when Father attempted visitation with the children; (b) Mother would telephone the children constantly and cry when they were with their Father; (c) Mother was obsessed with making shared parental responsibility as difficult as possible for the Father; and (d) Mother communicated her dislike of Father to the point that it affected the children’s emotional well-being. The Court found that the Mother’s behavior was damaging to the children, Father would provide better access to the children, and it was in the best interests of the children that Father be the primary custodian of the children. Id. at 808-809. Post-dissolution conduct interfering with the visitation coupled with creating emotional problems in the children is a substantial change in circumstances. Id. 809 [citing Kudick, 622 So. 2d 159 (Fla. 4th DCA 1993); Tessler, 539 So.2d 522 (Fla. 4th DCA)].

Florida law provides that when a parent refuses to honor the timesharing schedule, the other party may (a) seek modification of the timesharing schedule; (b) order make-up timesharing; (c) order that the non-complying party pay attorney’s fees and costs to enforce the timesharing schedule; and (d) hold the recalcitrant parent in contempt.

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