What is formerly known as “custody" is currently referred to as “time sharing" in Florida Statutes. When parties in a dissolution of marriage case have a minor child in common, there is a need to establish parental responsibility for the minor child. The parties will strive to agree on a parenting plan, including a a time-sharing schedule, which governs each parent’s relationship with his or her minor child.
For purposes of establishing parental responsibility and creating, developing, or approving a parenting plan, the court must decide all such matters in accordance with the best interests of the child. However, it is important to note that any modification to 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 in addition to a determination that the modification is in the best interests of the child.
What may seem as an emergency to you that warrants a modification of an existing time-sharing schedule may not persuade the judge if he or she does not consider it a substantial change in circumstances. For example, in a recent opinion by the First District Court of Appeals, the former husband and wife had time-sharing of their minor child, when the former husband sought to modify it on an emergency basis because his cancer was no longer in remission and his health was deteriorating. The trial court granted the former husband’s motion and modified, on a temporary basis, the final order establishing time-sharing, notwithstanding the fact that the basis supporting the modification was not unanticipated and the court had taken into consideration the former husband’s health when it first issued the final order.
The 1st DCA overruled the trial court’s decision on this point, holding:
“in order to obtain a temporary modification of custody, the moving party must establish (1) that there has been a substantial change in the condition of one or both parties, and (2) that the change in custody serves the best interests of the child … Furthermore, the substantial change must be one that was not reasonably contemplated at the time of the original judgment."
Here, because the trial court acknowledged that it had taken the former husband’s health into consideration when it issued the final order, it was without power to grant a modification of such order.
Dissolution of marriage can be an emotional process, especially when children are involved. You want to ensure that you secure the best possible outcome for you and your children. That is why it is important to seek the advice of counsel from the inception of your dissolution of marriage case. If you currently have time-sharing of your minor child or children and are experiencing a change in circumstances that you feel warrants a modification of your existing order, make sure you speak to an attorney so that you are adequately prepared to meet your burden of proof to get a modification granted.
See Langdon v. Langdon, 37 Fla. L. Weekly D2061 (Fla. 1st DCA 2012).
Liridona Sinani is an Attorney with Martin Law Firm, P.L., whose practice focuses primarily in Family Law. She is admitted to practice law in the State of Florida. She primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.
Sign up to receive a 3-part series of useful information and advice about child custody law.