CUSTODY MODIFICATIONS IN FLORIDA

In Florida, the suggestive labels of "primary parent" and "secondary parent" have been abolished with the hope that custody battles and power struggles over who wins the title of "primary parent" would end.

Now parents are just called parents, and courts try to adopt fair parenting plans with time-sharing schedules designed to encourage meaningful and beneficial relationships between the child and both parents. Shared parental responsibility and joint legal custody are preferred in most cases.

After a court enters a final judgment in a custody case, it leaves the case open until the child legally becomes an adult. This is so that it may modify the judgment as needed.

If one parent feels that the circumstances have changed since the final judgment was entered, and the arrangement is no longer in the best interest of the child, that parent must file what is called a Supplemental Petition to Modify Parental Responsibility. This petition is necessary to change a the final judgment in a custody case.

There used to be a very heavy burden in some parts of Florida requiring a parent seeking to modify a final judgment to show that the current situation was detrimental to the child. The Florida Supreme Court overruled this test in Wade v. Hirschman, 903 So.2d 928 (Fla. 2005) making it easier for parents seeking to modify custody arrangements to do so.

Florida courts now use the "Substantial Change Test." A parent seeking to change the final judgment must explain why such a change is justified. The petitioner must plead and prove that:

"Since the final judgment or last modification thereof, there has been a substantial, material and unanticipated change in circumstances, requiring a modification of the parental responsibility, visitation, or Parenting Plan/Time-Sharing."

What does that mean?

Well, there is no clear-cut definition of what a "substantial, material and unanticipated change in circumstances" means, but courts examine each situation on a case-by-case basis.

The parent seeking the change must also explain why the change would be in the best interest of the child and argue the factors that the court should consider. These factors are outlined in the Florida Statutes Section 61.13(3)(a)-(t).

A parent concerned about their child's custody arrangement should consult with a family law attorney in order to learn more about their options and the likelihood of success prior to filing any such petition.

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