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.
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 modified the final judgment of dissolution of marriage. It did so by letting mom enroll the kids in a Turkish-speaking (rather than English-speaking) private school, absent finding a substantial change in circumstances had occurred and competent substantial evidence to support such a change.
The parents had specifically addressed the children’s private school attendance in the settlement agreement. The trial court had considered and ratified the agreement and incorporated it into the final judgment. Therefore, the alleged changes did not occur post-judgment and were not “unanticipated.” The final judgment provided no standard for modification other than the substantial change in circumstances test.
Amendments to Modification Standard: Substantial Changes No Longer Need Be “Unanticipated”
Might the outcome in Martinez v. Kurt may have been different under amended 61.13(3), Florida Statutes?
Under amended parenting plan and timesharing law, a parent seeking modification no longer has to prove that a substantial change in circumstances for modification was unanticipated. See CS/HB 1301, amending section 61.13(3), Florida Statutes. Laws of Florida, Ch. 2023-301.
Effective July 1, 2023, the required elements for modification of a parenting or time-sharing schedule are:
- The change in circumstances is substantial.
- The change in circumstances is material.
- Modification is in the best interests of the child.
Read more about Parenting Plans, Consent to Mental Health Treatment, Beneficiary Designations After Divorce, and more at Sampson Collaborative Law Blogs.
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