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.