Collaborative Divorce

Collaborative Parenting Plans in Florida divorce or paternity cases may address your child’s future best interests in ways Florida family judges can’t.  Judges are not prophets: a judge has no crystal ball to see how future events might affect your child’s best interests.  In making decisions about parenting, a family judge generally can’t engage in “prospective-based” analysis of a child’s best interests.   That means they must decide issues looking at a snapshot of the present. Typically, they base that look on evidence about the past. Florida law generally stops judges from extrapolating from the snapshot a movie about the future. However, judges may try putting the snapshot in context of a movie they see unfolding. They may enter orders based on the movie they imagine.  Appellate courts review such orders when a parent challenges them for improper “prospective-based” analysis. Then, appellate courts may reverse them and send them back to the trial judge. So, when can judges look ahead? They can order parenting arrangements based on future events reasonably and objectively certain to happen at an identifiable time. Case law gives us examples; there’s no list. That means guessing the events a trial judge or an appellate court will find reasonably and objectively certain to happen at an identifiable time is risky. Can you avoid such risks? What can you, as a parent, do to reduce this uncertainty in your collaborative parenting plan? You may commit to doing the best you can by your kids and to being flexible and nonadversarial. Consider planning for events you think will happen, try agreeing, and include protocols to resolve disputes out-of-court.   Why not specify in your parenting plan the future events and milestones you and the other parent agree are reasonably certain or simply likely to occur? Parents did that in Perseo v. Donofrio, 379 So. 3d 1183 (Fla. 4th DCA 2024). Agree on a Different Burden for Modification? For events not reasonably certain to occur, you may agree to override Florida’s extraordinary burden for modifying parenting plans.  That test is known as the  “substantial change in circumstances” test.  Read more here. But are you stuck with that extraordinary burden? The answer is you’re not. Instead, you may ask a judge to adopt in your initial final judgment less burdensome requirements for modification than those the substantial change in circumstances test imposes. That less burdensome test is the “best interest” test used when judges initially decide parenting issues in a divorce or paternity case.  Ask the Judge to Update the Parenting Plan What should you do when events you and the other parent have foreseen later happen? To memorialize these changes, ask the court to review your Parenting Plan provisions. The judge may agree the provisions are in your child’s best interest and update the parenting plan or supplemental judgment.  Agree to Resolve Future Disputes Out-of-Court Agreed protocols can help your family work out future disagreements . For example, you may contract to return to the neutral collaborative facilitator who worked with you on your parenting plan. Alternatively, you may agree to return to the collaborative process.  Or,  you may agree to mediate before filing suit for modification. Related Blog Posts:

Judges Must Make Decisions About Children’s Best Interests Based On Present Facts, Not Future Best Interests. Judges must decide parenting issues based on your child’s best interests as of the final hearing, not on your child’s future best interests. A judge has no crystal ball to determine if parenting plan changes, triggered by future events, would be in your child’s future best interests. Arthur v. Arthur, 54 So. 3d 454 (Fla. 2010) (the trial judge cannot predict if future relocation is in a child’s best interests). For example, in Amiot v. Olmstead, 321 So. 3d 305 (Fla. 1st DCA 2021), the court struck a conditional provision the trial court included in an order modifying timesharing. In the final divorce judgment, the court adopted the parties’ marital settlement agreement, which gave each parent roughly equal timesharing. Mom received a military transfer to California. She asked for permission to relocate there with the child. The trial court denied her request and adopted a long-distance parenting plan. Regarding not looking too far ahead, however, the court went too far in providing for changes to the parenting plan based on future conditions. Specifically, the court ordered, if mom were to move back to within 60 miles of Bay County Florida, timesharing would revert to the original schedule. Citing Arthur, the appellate court held the trial court had engaged in improper prospective-based determination of the child’s best interest. Further, the court improperly excused mom from having to comply with Florida’s relocation statute if she ever moved back to Florida. This relocation statute includes best interest factors a court must consider when a parent seeks relocation without the other parent’s consent. Judges Can’t Speculate About Future Best Interests Other cases apply Florida’s requirements judges stay focused on present best interests, unless events are reasonably certain to occur. See, for example, CG v. MM, 310 So. 3d 977 (Fla. 2d DCA 2020), in which the court improperly considered a speculative prospective relocation by mom from Pinellas to Hillsborough County. The court erred when it ordered an automatic change in timesharing if that were to occur. In another relocation case, Alinat v. Curtis, 86 So. 3d 552 (Fla. 2d DCA 2012), citing Arthur, the appellate court reversed an order allowing mom to relocate with the parents’ two children to Australia for three years. Dad opposed relocation. The trial court improperly delayed a final determination of the children’s best interests for three years. Similarly, a trial judge erred by including a prospective relocation timesharing default provision in a final judgment. The judge granted a mom’s request to relocate, but with a proviso such approval might be reversed if mom failed to comply with the parents’ timesharing agreement. Wilson v. Martin, Case No. 4D2024-3155 (Fla. 4th DCA November 12, 2025). Such provisions violate Florida law (Arthur v. Arthur) by imposing automatic, prospective, punitive modification based solely on contingent, speculative events. Natali v. Natali, 313 So. 3d 958 (Fla. 2d DCA 2021); Solomon v. Solomon, 221 So. 3d 652 (Fla. 4th DCA 2017); White v. Lee-Yuk, 354 So. 3d 563 (Fla. 3d DCA 2022); Giacomaro v. Brossia, 396 So. 3d 322 (Fla. 4th 2024). Exception: Future Best Interests: Parenting Plans and Events Reasonably Certain to Occur. An exception to the above rule is judges may allow a timesharing plan that applies the child’s best interests, as determined at the final hearing in a Florida divorce or paternity action, to an event reasonably and objectively certain to occur at an identifiable time.  For such events, judges need no crystal ball. For example, see NB v. RV, 353 So. 3d 1269 (Fla. 2d DCA 2023). In NB v. RV, the court upheld a parenting plan and order for timesharing to change once the child started kindergarten. For example, parents may agree on definite milestones and corresponding changes to timesharing. That’s what parents did in Perseo v. Donofrio, 379 So. 3d 1183 (Fla. 4th DCA 2024). Their parenting plan set forth a series of timesharing schedules: over three years, dad would receive increased timesharing with the child. He wouldn’t have to meet the usual extraordinary burden for modifying custody. So…When can a Florida family law judge look to the future? What are events reasonably certain to occur? For more, read the next section here. Related Blog Posts:

When Can a Judge Look Ahead? When ordering a parenting plan in a Florida divorce or paternity action, the judge generally must stick to the present. The judge must make determinations based on findings about your child’s present best interests. That means avoiding “prospective based determinations” about your child’s future best interests. But what about events reasonably certain to occur? Can you and a judge look ahead? Exception: No Crystal Ball for Events Reasonably Certain to Occur An exception to this general rule is judges may allow a timesharing plan that applies the child’s best interests, as determined at the final hearing, to an event reasonably and objectively certain to occur at an identifiable time.  For such predictable events, judges need no crystal ball. Without this exception, you’d have to seek permission to modify the parenting plan after changes that inevitably occur in your child’s life, like starting school. Moreover, satisfying the requirements to get modifications isn’t easy. Read more about Florida’s extraordinary burden for modification of parenting plans. Parents May Agree on Certain Milestones Parents may agree on definite milestones and corresponding changes to timesharing. That’s what parents did in Perseo v. Donofrio, 379 So. 3d 1183 (Fla. 4th DCA 2024). Their parenting plan set forth a series of timesharing schedules: over three years, dad would receive increased timesharing with the child. He wouldn’t have to meet the usual extraordinary burden for modifying custody. Unfortunately, after the last milestone happened, they couldn’t agree on the changed timesharing schedule. When Is No Crystal Ball is Required? When events are reasonably certain to occur, a judge may look ahead. For example, in a paternity case, Rivera v. Purtell, 252 So. 3d 283 (Fla. 5th DCA 2018), the trial court mistakenly concluded it couldn’t modify timesharing once the child started kindergarten. That was a future event reasonably certain to occur. Accordingly, the court could order modification of the present 50-50 overnight timesharing, in effect while the parents lived more than 50 miles from each other, to a schedule giving dad majority overnights during the school year. But, if mom moved within 25 miles of dad’s residence by the time their child started kindergarten, the 50-50 schedule would apply.   In the Fifth District’s view, Arthur v. Arthur, 54 So. 3d 454 (Fla. 2011) only prohibits a trial court from predicting a change in a child’s best interests as of some future date or event.  In contrast, for other cases, no “crystal ball” is required. Based on the child’s best interests as of trial, the judge can make conclusions about events reasonably and objectively certain to happen at a definite time.   “[W]hen crafting a timesharing plan, a trial court must be free to account for reasonably and objectively certain future events. Otherwise, the parties would be required to continuously seek permission from the court after every change that inevitably occurs in a child’s life, like starting school. We decline Mother’s invitation to interpret Arthur’s prohibition so broadly that Florida’s trial courts become de facto parents.” Rivera v. Purtell, 252 So. 3d 283, 286 (Fla. 5th DCA 2018) Starting School Is An Event Reasonably Certain to Occur As the Rivera court held, starting kindergarten was an event reasonably certain to occur. Therefore, the trial court could provide for future modification. Similarly, the Second DCA upheld a parenting plan and order for timesharing automatically to change once a child started kindergarten. NB v. RV, 353 So. 3d 1269 (Fla. 2d DCA 2023). Facts of NB v. RV The trial judge rejected dad’s challenge to the timesharing arrangements the judge ordered. The court okayed mom’s relocation with the child from Orlando to Hillsborough County. According to the order allowing relocation, dad’s timesharing would change automatically once the child began attending school. The amended final judgment and incorporated parenting plan provided both parents would have equal timesharing with the child until the child begins kindergarten or, if mandatory, prekindergarten.  Then, once the child began school, mom would have majority timesharing during the school year and dad would have timesharing on alternating weekends, each long weekend, and for extended time on school breaks. Dad contended the automatic modification of timesharing upon the child’s beginning school violated Florida law because it’s derived from improper “prospective-based analysis.”  Second DCA Upholds Automatic Modification The 2d DCA in NB v. RV affirmed the trial court’s decision. A prospective modification is okay when based on the child’s best interests as determined at the final hearing and in consideration of an event that is reasonably and objectively certain to occur. Here is the court’s reasoning: Typically, a trial court must assess the best interests of a child “under the circumstances at the time of the modification proceeding; they cannot be determined prospectively based on either the satisfaction of predetermined benchmarks or the failure to achieve them.” Mallick v. Mallick, 311 So. 3d 243, 250 (Fla. 2d DCA 2020) (en banc) (citing Arthur v. Arthur, 54 So. 3d 454 (Fla. 2020); Henderson v. Henderson, 905 So. 2d 901 (Fla. 2d DCA 2005)). This is because “a trial court is not equipped with a ‘crystal ball’ that enables it to prophetically determine” a child’s best interests regarding a future change in circumstance. Eisele v. Eisele, 91 So. 3d 873 (Fla. 2d DCA 2012) (quoting Arthur, 54 So. 3d at 459). A parenting plan that “presents a multi-phased timesharing arrangement that automatically progresses based on the satisfaction of multiple predetermined but contingent future events” presents the same “crystal ball” problem that was addressed in Eisele. Natali v. Natali, 313 So. 3d 958, 959 (Fla. 2d DCA 2021)(emphasis added). This is because the best interests of a child may change over an extended time period. Id. at 960. (citing Arthur, 54 So. 3d at 459). Although automatic modification of timesharing is improper when based on predetermined but contingent future events, it is not improper when it “applies the child’s best interests as determined at the time of the final hearing to an event that is reasonably and objectively certain to occur at an identifiable time in the future.” Rivera v. Purtell, 252 So. 3d 283, 286 (Fla.

Parenting plans govern parents’ future conduct in relationship towards each other and towards their children.  These relationships comprise regular and holiday timesharing schedules, decision making about major events in a child’s life, and communications. Parents and judges necessarily look ahead to create parenting plans that promote children’s best interests. Therefore, parenting plans entail prediction. Yet, under Florida’s extraordinary burden for modifying parenting plans generally stops a judge from engaging in “prospective-based” analysis of a child’s best interests. Don’t Parenting Plans Govern Future Conduct and Entail Prediction? As the concurring judge observed in Natali v. Natali, 313 So. 3d 958 (Fla. 2d DCA 2021), parenting plans govern future conduct.  Yet the majority of the court rejected a prospective-based best interest analysis based on factors that could change over an extended time. See also TA v. AS, 335 So. 3d 208 (Fla. 2d DCA 2022) (following Natali and rejecting a multiphase timesharing schedule upon completion of certain events). Florida’s Best Interest Factors Include a Future Focus: Parenting Plans Entail Prediction Moreover, Florida’s “best interest” factors in Section 61.13(3), Florida Statutes, which trial judges must make findings about when adopting initial Parenting Plans, include: Imperfect Evidence About the Future At the time of an initial divorce or paternity proceeding, there may be murky evidence or no evidence about future events.  Alternatively, clear evidence may show such events, although probable, are not certain to occur at an identifiable time.  As a result, this indefiniteness may cause your judge to play it safe and make no predictions or orders about the future.  That leaves you and your child’s other parent, even when you know you’ll want to address predictable future events, thinking you will face an extraordinary burden of proof to modify your parenting plan.  Suppose your judge initially won’t (because the judge can’t) engage in prospective-based “best interest” determinations. When predictable events do take place, you or the other parent may conclude filing an adversarial modification lawsuit is your only option. But it isn’t.  Moreover, even for limited prediction the law allows a judge, why leave that to someone who has never met and doesn’t know your child? Instead, you and the child’s other parent may want to anticipate and plan for future events.  Parents did that in Perseo v. Donofrio, 379 So. 3d 1183 (Fla. 4th DCA 2024). Their parenting plan set forth a series of timesharing schedules: over three years, dad would receive increased timesharing with the child. He wouldn’t have to meet the usual extraordinary burden for modifying custody. You should be able to plan for your child’s future, shouldn’t you? Parents Plan for Many Events for Their Children Parents in intact relationships and those who are separating plan for milestones and future events for their children. Examples include: Should parents and courts be able to create flexible parenting plans anticipating and adjusting for such events? What Happens When Attempts to Plan Collide With Florida’s Modification Burden? Parents’ and courts’ best intentions may meet the buzzsaw of Florida’s modification standard. That standard is called the “substantial change in circumstances” test. An element of this test is the circumstances you believe justify modifying your parenting plan were not reasonably contemplated at the time of the final judgment.  Read more here. Being unable to meet the burdensome test for modification, for circumstances reasonably contemplated and predictable at the time of the final judgment – even if not “certain” – can: Related Blog Posts:

In Florida, parents face an extraordinary burden for modification of a parenting plan. This burden is called the “substantial change in circumstances” test. The test for modification applies unless the initial final judgment provides otherwise. In Wade v. Hirschman, 903 So. 2d 928 (Fla. 2005), the Florida Supreme Court considered the issue of what test trial courts should use in modifying rotating custody agreements. The court concluded that unless otherwise provided in the final judgment, the two-part “substantial change” test used in Cooper v. Gress, 854 So. 2d 262 (Fla. 1st DCA 2003), applies to the post-dissolution modification of all custody agreements.  The substantial change in circumstances test the Florida Supreme Court articulated in Wade v. Hirschman, 903 So. 2d 928 (Fla. 2005) applies to the modification of a divorce decree providing for the custody and care of a child.  Likewise, in paternity modifications, the substantial test applies. See, e.g., DMJ v. AJT, 190 So. 3d 1129 (Fla. 3d DCA 2016); George v. Lull, 181 So. 3d 538 (Fla. 4th DCA 2015); Gaston v. Kanter, 982 So. 2d 34 (Fla. 1st DCA 2008). Courts have described the substantial change test as imposing an extraordinary burden for modification of parenting plans. See Hutchison v. Hutchison, 287 So. 3d 695 (Fla. 1st DCA 2019); Ragle v. Ragle, 82 So. 3d 109 (Fla. 1st DCA 2011) (quoting Boykin v. Boykin, 843 So. 2d 317 (Fla. 1st DCA 2003)).  For Custody Modification, the Extraordinary Burden to Show a Substantial Change in Circumstances Extends to Settlement Agreements A decree for purposes of the substantial change test includes both a decree that has incorporated a stipulated agreement concerning child custody and a decree awarding custody after an adversarial hearing. See Frazier v. Frazier, 109 Fla. 164, 147 So. 464 (1933). This substantial change test requires the parent seeking modification of custody to show both that the circumstances have substantially, materially changed since the original custody determination and that the child’s best interests justify changing custody. Furthermore, the substantial change must be one not reasonably contemplated at the time of the original judgment. See Cooper, 854 So. 2d at 265. Final Judgments May Provide a Different Standard than the Extraordinary Burden for Modification Test Wade v. Hirschman says the extraordinary burden for modification known as the substantial change test applies unless the judgment otherwise provides. See also CN v. IGC, 316 So. 3d 287 (Fla. 2021). For example, in  Mooney v. Mooney, 729 So. 2d 1015 (Fla. 1st DCA 1999), parents agreed that beginning of school would constitute a change in circumstances when they’d readdress custody. Likewise, in Greene v. Suhor, 783 So. 2d 290 (Fla. 5th DCA 2001), the Fifth District determined that a father “was not required to meet th[e] heavy burden of proof” normally applicable in timesharing modification proceedings. There, the parents provided in their agreed timesharing agreement that the minor child “would be with each parent on alternating months until [the child] started kindergarten[,]” at which time “residential custody would be with the mother.” The Florida Fourth District Court of Appeal followed suit in 2024. In Perseo v. Donofrio, 379 So. 3d 1183 (Fla. 4th DCA 2024), the court upheld a parenting plan that expressly set forth a series of timesharing schedules. Over three years, and milestone events happening, dad’s timesharing with their child would increase. Neither parent would have to return to court for the agreed modified schedules to take effect. Regarding the last milestone date, the parenting plan said: March 1, 2019: The parties will revisit the timesharing schedule without prejudice. No Supplemental Petition for Modification needs to be filed by either party. If the parties are unable to agree on a schedule at that time after attending formal mediation, the matter shall be submitted to the Court.  Emphasis added in opinion. Opportunity to Create Flexible Parenting Plans The exception gives parents opportunity to reach settlement agreements providing for a less burdensome standard for modification than the substantial change in circumstances test. See, for example, Walker v. Wallace, 357 So. 3d 708 (Fla. 4th DCA 2023). In Wallace, dad travelled for work when the parties settled their divorce. However, once dad stoped traveling for work, the parents’ agreement said no substantial change in circumstances would need to be shown to increase his time with the kids. Instead, the parents agreed “it is in the best interests of the children” to spend more time with dad. Still, modification required court approval. Parents may tap into their freedom and power to contract in the collaborative process to achieve creative solutions otherwise unavailable to a judge. Related Blog Posts:

When considering parents’ agreements, judges must safeguard children. A court isn’t bound by parents’ agreements regarding child support, custody, or visitation. Feliciano v. Feliciano, 674 So. 2d 937 (Fla. 4th DCA 1996); see also Yitzhari v. Yitzhari, 906 So. 2d 1250, 1257 n. 4 (Fla. 3d DCA 2005). A Court’s Responsibility to the Child Florida family law judges have a heavy responsibility to safeguard children. In carrying out this responsibility, they must ensure purported agreements or arrangements between parents don’t shortchange their child. A court “is not bound by an agreement of parents regarding child support, custody, or visitation.” See Puglisi v. Puglisi, 135 So. 3d 1146 (Fla. 5th DCA 2014) (citations omitted). Rather, the “best interests” of the child supersede “any agreement between the parents and must be independently determined by the trial court.” Id. The Fourth District noted this duty in Healy v. Healy, Case No. 4D2024-1087 (Fla. 4th DCA April 23, 2025). Likewise, in Jones v. Jones, 674 So. 2d 770 (Fla. 5th DCA 1996), the court held: “The best interests of the children are to govern the custody decision, regardless of any stipulation between the parties.” A trial judge, who must safeguard a child’s best interests, may set an agreement aside on child support, custody, and visitation if the agreement is not in the best interest of the child. “It is undisputed, and should be indisputable, that a trial court’s responsibility to the child cannot be abdicated to any parent, any expert. That heavy responsibility mandates that a court is not bound by any agreement between parents.” Dorsett v. Dorsett, 902 So. 2d 947, 951 (Fla. 4th DCA 2005) (quoting Lane v. Lane, 599 So. 2d 218, 219 (Fla. 4th DCA 1992)) The court must guard against a parent’s bargaining away a child’s rights for reasons unrelated to the child’s best interests. See Griffith v. Griffith, 860 So. 2d 1069 (Fla. 1st DCA 2003); Cappola v. Cappola, 280 So. 3d 102 (Fla. 4th DCA 2019). As Judges Safeguard Children, Do the Child’s Best Interests Support Enforcing the Parents’ Agreement? These principles arose in Antunes v. De Oliveira, 341 So. 3d 420 (Fla. 3d DCA 2022). Mom and dad settled their divorce. They agreed, if either them wanted to take their child out of the United States, that parent would notify the other in writing at least seven days before the trip. Failure to comply would cost the parent $10,000, to be paid to the other parent. Further, they agreed the offending parent would forfeit the right to travel internationally with the minor child until the child became an adult. Mom took the child to Ireland and didn’t tell dad until the child returned. He moved to enforce the agreement. The appellate court said the trial court should’ve enforced the parents’ agreement on the $10,000. But, in contrast, the appellate court reaffirmed judges must safeguard children. Accordingly, the court upheld the trial judge’s refusal to enforce the ban on future international travel. Competent substantial evidence the agreed prohibition on wasn’t in the child’s best interests supported this decision. Judges Must Safeguard Children, But Have No Free Hand to Disregard Parents’ Wishes Judges must safeguard children. So parents’ agreements affecting a child’s rights aren’t binding on a family judge. Feliciano v. Feliciano, 674 So. 2d 937 (Fla. 4th DCA 1996). Still, the judge has no free hand to disregard their wishes. Sedell v. Sedell, 100 So. 2d 639 (Fla. 1st DCA 1958).  A court should respect and uphold parents’ agreed parenting plans unless a valid reason related to (1) the best interest of the child or (2) a finding that parents’ agreements were involuntary or the product of fraud justifies not respecting and upholding the parents’ agreements.  See Griffith v. Griffith, 860 So. 2d 1069 (Fla. 1st DCA 2003)(insufficient evidence supported trial judge’s disdaining parents’ mediation agreement resolving alimony, child support, and custody, conducting post-mediation hearings to determine if the agreement was in the children’s best interest, and, concluding the agreement wasn’t in the children’s best interest, reducing doctor-mom’s agreed-on child support obligation); Williams v. Sapp, 255 So. 3d 912 (Fla. 1st DCA 2018)(With no notice or opportunity for mom to be heard, a trial judge improperly modified parents’ mediation agreement for mom to have sole parental responsibility; the trial court must either approve the parents’ agreement as they negotiated it or, if the court is unable or unwilling to do so, must conduct a properly noticed evidentiary hearing). Collaborating parents may wish to adopt Parenting Plan provisions that cover anticipated future events. See, for example, Perseo v. Donofrio, 379 So. 3d 1183 (Fla. 4th DCA 2024). But the parents must respect that judges must safeguard children whom the provisions would affect. That’s why it makes sense to enlist court review of the children’s best interests when anticipated future events occur. Agreed Different Burden for Modification – Judges Still Must Safeguard Children Even when parents have exercised their contract power to agree to a different burden for modification, judges must safeguard children. So it was in Alaska, which has a substantial change in circumstances test similar to Florida’s test. In JM v. SC, Case No. S-18650, No. 7707 (Alaska July 19, 2024), The highest court in Alaska acknowledged parents had agreed in their settlement agreement to a different burden of proof for modification than the substantial change in circumstances test. But the trial judge decided to apply the substantial change in circumstances test and conduct a “best interest” analysis. The Alaska Supreme Court affirmed the decision, rather than defer to the parents’ agreed-upon burden for modification. The Parents’ Collaborative Agreement The parents – two doctors – reached a custody agreement after participating in the Collaborative Divorce process. They agreed: Regarding modification, they further agreed: “Any attempt by either parent to modify the terms of this agreement with respect to [the child’s] relocation to New Jersey should be rejected absent” unanticipated circumstances “detrimental” to the child. The Alaska Supreme Court discussed how Alaska favors settlement agreements. But the parents couldn’t avoid law that judges have an independent duty to safeguard children in custody modification, including relocation, actions. The Supreme Court of Alaska agreed custody

Parents in Florida divorce and paternity cases may anticipate and plan for events reasonably certain to occur in their children’s lives. They may enter into parenting agreements that flexibly adjust provisions when predicted and planned for events take place. Case Examples of Events Reasonably Certain to Occur For example, in Rivera v. Purtell, 252 So. 3d 283 (Fla. 5th DCA 2018), parents “could reasonably anticipate the circumstances that would exist” when an event occurred, and the court, “could therefore make a reasoned best interests determination based upon those anticipated circumstances.”  See also Stevens v. Stevens, 929 So. 2d 721 (Fla. 5th DCA 2006) (parents planned custody changes based upon an expected date-certain event, namely, circumstances that would exist when the father’s tour of duty ended). Following the Rivera court’s reasoning, the Second DCA upheld a parenting plan and order for timesharing automatically to change once a child started kindergarten. NB v. RV, 353 So. 3d 1269 (Fla. 2d DCA 2023).  Florida law saying trial judges can’t engage in improper “prospective best interest” determinations doesn’t prohibit: a timesharing plan which, as here, applies the child’s best interests as determined at the time of the final hearing to an event that is reasonably and objectively certain to occur at an identifiable time in the future.” Id. at 286. The appellate court concluded that starting school “is by definition a reasonably and objectively anticipated change in circumstances that will occur at a time certain” and that “it was entirely proper for the trial court to adjust timesharing as of the time the child starts kindergarten.” Id. at 287. The trial court’s determination to modify timesharing once the child began kindergarten was “based upon the facts before it at the final hearing, and no crystal ball is required.” Id. at 286. NB v. RV, 353 So. 3d 1269 (Fla. 2d DCA 2023) (quoting Rivera v. Purtell, 252 So. 3d 283 (Fla. 5th DCA 2018))  In Johnson v. Johnson, 313 So. 3d 651 (Fla. 4th DCA 2021), the trial court could account in the parenting plan for circumstances reasonably certain to occur: the child’s starting school. Anticipating that event, the court could adjust the school boundary designation (if not in violation of school board policies). The court gave mom an option. Mom could move back to Palm Beach County with the child and have majority timesharing. If she made that choice, dad would have Thursday overnights and long alternating weekends. On the other hand, mom could stay in Broward County. If she did, dad would having majority timesharing and she’d get alternating weekends starting Friday afternoon. The appellate court upheld the court’s building these conditions into the parenting plan. Agreed Upon Definite Milestones: Perseo v. Donofrio Parents may agree in their parenting plan to revisit and modify timesharing after a certain date, without having to prove a substantial change in circumstances. That’s what happened, and the Florida Fourth District Court of Appeal upheld, in Perseo v. Donofrio, 379 So. 3d 1183 (Fla. 4th DCA 2024). Although the opinion doesn’t specify the milestones, the court honored the parents’ effort to establish such milestones by agreement. Their parenting plan expressly set forth a series of timesharing schedules. Over three years, and milestone events happening, dad’s timesharing with their child would increase. Neither parent would have to return to court for the agreed modified schedules to take effect.  If the parents couldn’t agree on a modified timesharing schedule after they attended mediation, they agreed to submit the matter to the court. Search Free Florida Case Summaries for More Cases For more cases discussing prospective-based analysis of a child’s best interests, search Sampson Collaborative Law’s free case search tool. Try searching for “prospective best interests” or “future best interests.” Circumstances Parents Might Determine Are Reasonably Certain to Occur at a Definite Time Future events the reasonable certainty of which parents may consider will occur at a definite time may include: Parents should respect the Court’s ongoing obligation to safeguard children’s interests. If they build in contingencies, they should consider enlisting Court approval when predicted events happen. Related Blog Posts:

A court has an ongoing obligation to safeguard minor children’s best interests. Collaborating parents may agree to enlist court review to approve modifications when events they anticipated in their parenting plans occur. Parents’ attempts to trigger automatic modifications for uncertain future events, which may not take place for months or years (if they ever do), invite reversal. For example, in Natali v. Natali, 313 So. 3d 958 (Fla. 2d DCA 2021), the court rejected a parenting plan that provided multi-phased timesharing arrangements. Such arrangements would automatically progress once predetermined but contingent events might happen. First, dad had to exercise supervised visitation for 3 months. Second, he had to take a parenting course and file with the court proof of completing it. But these benchmarks could take months or years to occur. By then, however, circumstances bearing on the best interest analysis could change significantly. The parenting plan, which provided for no court intervention or decision-making for the dad to advance to the next phase of multi-phased timesharing, fell short. Similarly, in a paternity case, TA v. AS, 335 So. 3d 208 (Fla. 2d DCA 2022), the Second District reversed a four-phase timesharing schedule. The schedule the judge had ordered was based on contingent events occurring. When they’d happen, timesharing would automatically change, but without judicial intervention. Enlist Court Review of Agreed Parenting Plan Modifications You have power to provide adjustments in parenting plan provisions for events likely to occur. But, to avoid the prohibition on a judge’s performing “prospective-based” analysis of your child’s best interests, you and the child’s other parent should enlist court review of the adjustments. Ask the judge to approve them. As events you and the other parent planned for come about, invite the judge to confirm the modifications are in your child’s best interest. If you reach impasse, consider ways to resolve it without fighting in court. Enlist Court Review: Contingencies Plus Future Best Interest Hearing First, anticipate contingencies about timesharing reasonably likely to occur. Second, agree on future modifications to your parenting plan, subject to the court’s then-determining your child’s best interests. Third, invite the judge to hold an evidentiary “best interests” hearing when the events unfold. That way, you and the judge avoid prohibition on speculating about your child’s future best interests. Williams v. Williams – 2026 Parenting Plan with Contingencies for Modification Upheld The trial judge, not the parents of two daughters, included in a parenting plan two contingencies. Once these contingencies would materialize, dad’s timesharing would change to a regular and holiday schedule. Williams v. Williams, Case No. 3D24-0974 (Fla. 3d DCA Feb 04, 2026). Background Facts: Williams Until March 1, 2022, the parents had been sharing time, with each alternating weeks. In a separate action from the dissolution action, mom got a final judgment of injunction for protection against domestic violence with children. At trial in the dissolution action, she testified dad dropped the parties’ two daughters and their belongings off March 1, 2022, then left. The girls had been only with her since March 2, 2022. Dad didn’t contact mom and blocked her from contacting him by phone or text. He reappeared Thanksgiving 2022, told her the divorce wasn’t fair, and said he should get the parties’ Homestead, Florida property. She filed on her own behalf, but not on the children’s behalf, for an injunction for protection against domestic violence. Dad testified she prevented him from seeing the kids since he dropped them off on March 1, 2022, the relationship between mom and dad was toxic, and they called the cops on each other multiple times. He decided to stop trying to contact the children and let the judge resolve the issues. Mental Health Treatment Dad, who’d getting mental health treatment since 2019, was on medications. His mental health got worse in 2022.  He asked the court to grant him time with the children in the summer and on holidays until he moved back from Chicago to Miami. Mom asked the judge to provide dad with reunification therapy. She wanted a reunification therapist to mediate reunification between the daughters and dad. The judge entered a final judgment of dissolution of marriage with an incorporated parenting plan in March 2024. The timesharing schedule in the parenting plan provided for contingencies upon the happening of which, if the judge were to later determine modifying the schedule to be in the children’s best interests, would result in modification. Contingencies and Modifying the Parenting Plan The trial court further noted there were two contingencies in this matter: dad’s reunification with the children and his relocation back to Miami. Both were in flux.  First, after finding mom had been the children’s sole caretaker for the past two years, and dad had abandoned his parental responsibilities since March 2, 2022, the judge ordered reunification therapy for him. Once reunification therapy commenced, the judgment said he’d have regular timesharing on alternating long weekends. Second, once dad completed reunification therapy, he’d get holiday timesharing: the children’s birthdays, Mother’s Day, Father’s Day, Spring Break, Summer Break, Thanksgiving, and Winter Break. Future Court Review: Further Hearing Necessary Then the trial judge noted in the final judgment, if dad returned to Miami, the court was mandated to conduct another hearing on the children’s best interests for a modification of the time-sharing schedule. On appeal, the court deferred to the trial judge’s broad discretion in timesharing matters: “Accordingly, the trial court did not abuse its discretion in the time-sharing plan it created.” Timesharing Plan Upheld, Even When Contingencies Were “In Flux” The Third District Court of Appeal upheld the trial judge’s timesharing plan. The opinion lacks specific discussion about the certainty or not of the contingencies taking place. On the contrary, the trial judge’s using stating the contingencies were “in flux” suggests no reasonable certainty they’d take place. Still, the appellate court was okay with the trial judge’s exercise of discretion. In creating the time-sharing plan, with the children’s best interests as the primary consideration, the judge had addressed each best interests of the

Can parents build contingencies in parenting plans for future events? For events you anticipate that are reasonably certain to occur, can you build automatic modifications into your parenting plan? CN v. IGC: Leaves Open Question of Whether Agreed On Contingencies are “Modifications” In CN v IGC, 316 So. 3d 287 (Fla. 2021), a mother invited the Supreme Court of Florida to hold a contingency a judge anticipated and built into their modified Parenting Plan wasn’t a “modification.” Mom claimed the contingency – her completing therapy – wouldn’t be an “unanticipated” change in circumstances. Section 61.13(3), Florida Statutes required changes on which a parent bases a modification request to be unanticipated.  Facts of CN v. IGC: Contingencies in Paternity Parenting Plan In 2014, the parents signed a paternity agreement and Parenting Plan. The court incorporated their agreement in a final judgment of paternity. Mom got 57 percent overnights; dad, 43 percent. Two years later, she accused him of physically abusing the child, which he disputed.   Dad moved to modify the Parenting Plan. After hearing medical and expert testimony, the trial judge found mom’s child abuse allegations were false, she was suffering from mental health issues, and her unfounded fears about dad and the child’s daycare caused her to act detrimentally to the child. The trial judge further found mom couldn’t coparent effectively and support the child’s relationship with dad. The trial court modified the timesharing, giving dad 2/3 and mom 1/3 overnights. The court ordered her to begin intensive mental health therapy, likely to take significant time and perhaps years.  The Fifth DCA, in CN v. IGC, 291 So. 3d 204 (Fla. 5th DCA 2020), rejected mom’s claim the modification order was flawed. She argued the judge had to set forth concrete steps or benchmarks towards which she could work to get back her lost time. The Fifth DCA disagreed and certified conflict with the 2d, 3d, and 4th District Courts of Appeal. Those DCAs, final judgments modifying timesharing had to specify steps to reestablish timesharing.  The Parents’ Arguments Mom likened an order anticipating timesharing changes after a parent’s successful completion of therapy to an order anticipating timesharing changes after a child starts kindergarten or high school.  In support, she pointed to Wade v. Hirschman, 903 So.2d 928, 932 n 9 (Fla. 2005). Wade authorizes a court to anticipate and account for contingencies in a parenting plan on the front end. Read more here. In opposition, Dad pointed to Arthur v. Arthur, 54 So. 3d 454 (Fla. 2010). Arthur held the trial judge can’t predict if future relocation is in a child’s best interests. The Supreme Court in Arthur held judges can’t engage in prospective-based analysis when determining a child’s best interests. See discussion here. Further, Dad argued it wasn’t reasonably certain mom’s successful completion of mental health therapy would occur at a definite time. See further discussion about events reasonably certain to occur here. Therefore, the trial judge couldn’t look into a crystal ball and know what parenting arrangements might then be in the child’s best interests. The Ruling…and Declining to Decide About Whether Florida Law Implies Limits on Anticipating Contingencies in Parenting Plans Florida’s highest court resolved the conflict among districts. It held trial courts owe a parent, whose timesharing the courts modify, no list of concrete steps to regain lost time. But, regarding modification, which has required there be an unanticipated change in circumstances, could an anticipated circumstance – successful completion of court-ordered therapy – be grounds for modification? Leaving the question open, because answering it wouldn’t change the outcome in light the ruling on the mother’s other points, the Supreme Court of Florida declined her invitation to speculate about hypotheticals: This is not the case in which to resolve the parties’ dispute about how to determine what constitutes a “modification” of a parenting plan for purposes of chapter 61, or whether the statutory modification process implies limits on anticipating contingencies in a parenting plan. Were we to take up these issues now, we would be speculating about hypothetical final judgments and whether their hypothetical contents are permitted under chapter 61. We think it better to address these questions in a case involving a challenge to an actual order, where our answers to the questions would matter to the outcome. In Kiswani v. Hafza, 403 So. 3d 416 (Fla. 5th DCA 2025), the Fifth DCA read CN v. IGC to say a final judgment modifying a parenting plan isn’t legally deficient for not specifying steps for a parent to reestablish timesharing. But the Fifth DCA found the higher court left intact its finding that section 61.13(3), Florida Statutes neither authorizes nor requires the trial court to set forth the specific steps outside of satisfying the requirements of section 61.13 necessary for a parent to reestablish timesharing.  In C.N. v. I.G.C., 316 So. 3d 287 (Fla. 2021), the Florida Supreme Court agreed “that a final judgment modifying a preexisting parenting plan is not legally deficient simply for failing to give specific steps to restore lost timesharing[,]” abrogating cases that “stand for the proposition that final judgments modifying timesharing must include the specific steps necessary to reestablish timesharing.” Id. at 289. However, the supreme court’s decision declined to address if “section 61.13(3), Florida Statutes, does not authorize trial courts to include such steps in a final judgment modifying a parenting plan.” Id. Thus, the supreme court’s opinion left this Court’s finding intact.Fn. 2. Agreed Upon Definite Milestones: Perseo v. Donofrio Parents may agree in their parenting plan to revisit and modify timesharing after a certain date, without having to prove a substantial change in circumstances. That’s what happened, and the Florida Fourth District Court of Appeal upheld, in Perseo v. Donofrio, 379 So. 3d 1183 (Fla. 4th DCA 2024).  Their parenting plan expressly set forth a series of timesharing schedules. Over three years, and milestone events happening, dad’s timesharing with their child would increase. Neither parent would have to return to court for the agreed modified schedules to take effect. Regarding the last milestone date, the parenting plan said: March 1, 2019: The parties

You may agree your judgment will provide for a different burden for modification than the substantial change in circumstances test. Read more about that extraordinary burden here. Authorizing Agreements to a Different Burden for Modification than the Onerous Substantial Change in Circumstances Burden The Supreme Court of Florida noted a judgment could provide a different standard to be applied when a parent seeks to modify custody. See Wade v. Hirschman, 903 So. 2d 928, 932 n. 9 (Fla. 2005). Wade approvingly cites Mooney v. Mooney, 729 So. 2d 1015 (Fla. 1st DCA 1999) (parents agreed that the beginning of school would constitute a change in circumstances which would require custody to be readdressed) and Greene v. Suhor, 783 So. 2d 290 (Fla. 5th DCA 2001) (custody order provided that either parent could seek reconsideration of the custody issue when their child started kindergarten, without showing a change in circumstances). In Greene, the dad did not have to meet the heavy substantial change in circumstances burden of proof. The modification proceeding should have proceeded as if it were an initial custody determination. The best interests of the child standard applies to initial determinations. The initial paternity final judgment directed the child would be with each parent alternating months until he started kindergarten. Then, the child’s primary residence would be with mom. The judge provided either party could seek reconsideration of custody when the son started school without showing a substantial change in circumstances. AGREED MILESTONES UPHELD: PERSEO V. DONOFRIO Parents may agree in their parenting plan to revisit and modify timesharing after a certain date, without having to prove a substantial change in circumstances. That’s what happened, and the Florida Fourth District Court of Appeal upheld, in Perseo v. Donofrio, 379 So. 3d 1183 (Fla. 4th DCA 2024). Their parenting plan expressly set forth a series of timesharing schedules. Over three years, and milestone events happening, dad’s timesharing with their child would increase. Neither parent would have to return to court for the agreed modified schedules to take effect. Regarding the last milestone date, the parenting plan said: March 1, 2019: The parties will revisit the timesharing schedule without prejudice. No Supplemental Petition for Modification needs to be filed by either party. If the parties are unable to agree on a schedule at that time after attending formal mediation, the matter shall be submitted to the Court. Perseo v. Donofrio, 379 So. 3d 1183 (Fla. 4th DCA 2024) (Emphasis added in the opinion). Mom and dad couldn’t agree on modification after the last milestone happened. He moved for modification. The trial judge, however, entered judgment on the pleadings in mom’s favor. The judge held dad to the substantial change in circumstances test, denied his petition. This, the appeals court held, was incorrect. The existing timesharing agreement, particularly the provision establishing the March 2019 milestone date, gave him the right to seek modification without proving the ordinarily required test for modification. In support, the court drew guidance from CN v. IGC, 316 So. 3d 287 (Fla. 2021), Wade v. Hirschman, 903 So. 2d 928 (Fla. 2005), Idelson v. Carmer, 330 So. 3d 81 (Fla. 2d DCA 2021) (discussed below), and Greene v. Suhor, 783 So. 2d 290 (Fla. 5th DCA 2001).  Final Judgments May Specify Different Burden of Proof for Modification Other Florida cases have allowed some parents to seek modification without demonstrating a substantial change in circumstances. A trial judge correctly modified a stipulated Parenting Plan, incorporated into a paternity judgment, governing parents’ timesharing for their three children. Idelson v. Carmer, 330 So. 3d 81 (Fla. 2d DCA 2021). The parents relationship was high conflict.  The family court correctly observed that it need not decide whether a substantial unanticipated change in circumstances had occurred, to include a child in a parenting plan. The parents had agreed to incorporate the child into the parenting plan upon either parent’s filing a motion after the child’s 3rd birthday. That precipitating event occurred. …[T]he provision is clear that the parties intended the family court to incorporate their youngest child into the parenting plan upon the filing of a motion and without the need to show that a substantial unanticipated change in circumstances had occurred. Idelson v. Carmer, 330 So. 3d 81 (Fla. 2d DCA 2021). But, for circumstances unrelated to precipitating event – the child’s turning 3 – that the parents had specified, the trial judge went too far. The court erred when it substantially modified their parenting plan without finding a substantial change in circumstances had occurred. Other Cases Where a Different Burden for Modification than the Substantial Change in Circumstances Applied In Segarra v. Segarra, 947 So. 2d 543 (Fla. 3d DCA 2006), a dad was not required to demonstrate a substantial change in circumstances to modify visitation. The parents’ marital settlement agreement specifically contemplated revisiting visitation when a precipitating event occurred: their child’s beginning formal school. See also Mooney v. Mooney, 729 So. 2d 1015 (Fla. 1st DCA 1999)(neither parent bore a higher burden of proof to show a substantial change in circumstances. The parents agreed at the time of divorce the beginning of the child’s school would be a change in circumstances requiring custody to be readdressed). Failure to Specify a Different Burden for Modification Compare cases in which final judgments failed to provide a different standard than the substantial change in circumstances for modification. For example, in Martinez v. Kurt, 9 So. 3d 54 (Fla. 3d DCA 2009), the parents’ settlement agreement was incorporated into final judgment of dissolution of marriage. The agreement provided for schooling for their children if mom wished to relocate to Turkey. The parents would have to agree to a full-time English-speaking school in Turkey. Neither parent could unreasonably withhold consent to the school selected after they discussed school information mom would provide to dad. Both parents would meet with school personnel. They would attempt to decide jointly for the best interest of their children. If that was unsuccessful, they would go to arbitration. The Third District Court of Appeal agreed with dad, who argued the trial court impermissibly