Substantial Change in Circumstances in Time-Sharing Cases-Not Always An Easy Hurdle to Overcome
SUBSTANTIAL CHANGE IN CIRCUMSTANCES IN TIME-SHARING CASES-NOT ALWAYS AN EASY HURDLE TO OVERCOME
In the State of Florida, once the Court has entered a Final Judgment regarding a dissolution, paternity or child support case, and a party seeks changes to the time-sharing decision (or even the child support amount), generally a Petition for Modification must be filed with the Court. In order to prevail on the initially filed case regarding time-sharing determination, the Court made its decision based upon the best interest of the child. Not so for a modification action. In order to prevail in a modification action, the party seeking modification has the "extraordinary burden" of proving a substantial change in circumstances occurred since the previous Final Judgment that warrants modification of the Final Judgment. After overcoming this burden, the party seeking modification must then show that the modification would be in the child’s best interest.
The Florida Legislature and the Florida courts have defined a substantial change in circumstances to be one that is substantial, material, unanticipated at the time of the Final Judgment, and permanent in nature. See Fla.Stat. 61.13(2)(c). The moving party must prove each and every one of these elements to prevail.
There are many instances where the courts have determined that a substantial change in circumstances did not exist, thus proving my point that this is not an easy hurdle to overcome. For example, temporary changes in the child’s living arrangements (i.e. child used to live with the mother for a majority of the time, but the parties agreed that for the next school year the child would live with the father) is not a substantial change in circumstances. See: Smoak v. Smoak, 658 S.2d 568 (Fla. 1st DCA, 1995) and Evans v. Evans, 490 So.2d 1035 (Fla. 1st DCA, 1986). The courts have also held that a modification cannot be based solely on the parties’ informal agreements (when the mother permitted an additional overnight visit) as this would discourage parents from making decisions in the child’s best interest. See. Sidman v. Marino, 46 So.3d 1136 (Fla. 1st DCA, 2010). Often, even when one party relocates, the Court still find this is not enough for a substantial change in circumstances. See: Halbert v. Morico, 27 S.3d 771 (Fla. 2nd DCA, 2010) (denied modification action that was filed when father moved 45 minutes away) and Ragle v. Ragle, 36 Fla.L.Weekly D 1790 (Fla 1st DCA, 2011) (holding that mother’s move 28 miles away, coupled with parents’ inability to effectively communicate, was not a substantial change in circumstances).
However, the hurdle can be overcome. The Courts have held that parental alienation, coupled with contempt and violations of shared parental responsibility are enough to meet the substantial change in circumstances test. See: Wade v. Hirschman, 903 So.2d 928 (Fla. 2005). But, be wary, as a finding of acrimonious relations and inability of the parents to communicate effectively is not in and of itself a substantial change in circumstances. See: Perez v. Reveiz, 50 So.2d 3rd 101 (Fla. 4th DCA, 2010).
If you are currently going through a dissolution action and are able to settle your case, placing certain circumstances that the parties’ agree to be substantial change in circumstances will likely be upheld by the Court (i.e. prohibiting relocation outside the state, stating that once the child starts school, the parties agree this will constitute a substantial change in circumstances, etc.). See:Segarra v. Segarra, 947 So.2d 543 (Fla. 3d DCA 2006).
Due to the complex nature of modification actions, it is highly recommended that anyone looking to file such an action obtain legal advise regarding same. Our firm represents clients in family law matters, including modification cases, in Broward, Miami-Dade and Palm Beach Counties. Therefore, if we can be of assistance to you, please feel free to contact us at (954) 316-3496.