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Child Custody Modifications

In Orlando, Tampa and throughout the state of Florida, it is possible to modify your child custody arrangment after your divorce is finalized. After the parenting plan, including time sharing and decision making power, has been initially determined, a court may modify the plan or visitation rights upon a showing that new and material conditions exist which substantially affect the interests and welfare of the child. Bon v. Rivera, 10 So. 3d 193 (Fla. Dist. Ct. App. 4th Dist. 2009). This is a two part test where the movant must present evidence demonstrating a substantial, material, and unanticipated change occurred after the original parental plan determination and that the requested modification is in the best interests of the child. Delivorias v. Delivorias, 80 So. 3d 352 (Fla. 1st DCA 2011). “Only if the preliminary question whether there has been a substantial change in circumstances has been answered in the affirmative does it become relevant to consider the best interests of the child.” Ogilvie v. Ogilvie, 954 So. 2d 698 (Fla. Dist. Ct. App. 1st Dist. 2007). Upon the appropriate evidentiary showing, the court may change the parenting plan by awarding either parent majority or equal time sharing.  Additionally, the court may change the parenting plan  by altering each parent’s decision making power over the child. Cruz v. Domenech, 905 So. 2d 938 (Fla. Dist. Ct. App. 3d Dist. 2005).

Consequently, in modification or change of parenting plan cases, the initial time sharing and decision making power determination will not necessarily control after any new and material change in circumstances affecting the child have been considered. This means that in a case concerning the parenting plan modification, the parent who currently possesses majority time sharing and decision making power will not be granted the right to retain this power automatically.

In evaluating whether there has been a substantial change in circumstances to justify modification for the best interests of the child, there is no bright line test that the court will consider. Instead, the court has a great deal of discretion and may consider many factors and evidence, including, but not limited to:

  1. All aspects of the parents' lifestyles. For example if a parent has a severe drug or alcohol problem or is partying every night instead of caring for a child.
  2. The disruption of a time sharing arrangement by the relocation of one parent. For example, if a parent moves across the country this may be sufficient evidence of a disruption of the time sharing arrangement.
  3. Difficulties in carrying out existing time sharing arrangements.
  4. The physical and mental health of the parents. For example if a parent has suffered a stroke and is not physically fit to care for the child.
  5. The parents' increased or decreased involvement in the child's life. For example, if parent voluntarily left the child with the other parent for two years while going away to school and did not exercise visitation.
  6. The length of time the child has lived with the primary residential parent. 
  7. The type of environment the parties can provide for the child. For example, if one parent starts to hoard and the house becomes unhealthy to live in.
  8. The increased or decreased parenting skills of the parents. For example, if a previously alcoholic parent has become sober and gotten their life in order, this may be sufficient evidence to justify greater time sharing.
  9. The increased or decreased financial stability of the parents.
  10. Disagreements between the parents. This would typically have to be a severe disagreement.
  11. Deliberate acts of alienation.  For example, if a parent refuses to allow child to call mother, or return child  after scheduled visit was over.

Modification of Visitation Rights

A court may also modify visitation rights in the context of a modification proceeding if the court deems that such a change is necessary.  Smoak v. Smoak, 658 So. 2d 568 (Fla. Dist. Ct. App. 1st Dist. 1995). However, unless a party petitions for modification of visitation, putting the issue of modification before the court, or an emergency affecting the welfare of child, the court is limited in expanding or limiting the scope of a parent’s visitation. Foerster v. Foerster, 885 So. 2d 927 (Fla. Dist. Ct. App. 2d Dist. 2004).

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