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.
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) (first citing Arthur v. Arthur, 54 So. 3d 454, 459 (Fla. 2020); and then citing Henderson v. Henderson, 905 So. 2d 901, 904-05 (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, 875 (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. 5th DCA 2018) (distinguishing Arthur); see also Natali, 313 So. 3d at 960 (recognizing that under the facts presented, the conditions at issue were not “reasonably and objectively certain to occur at an identifiable time in the future” (quoting Rivera, 252 So. 3d at 286)).
When an event is reasonably and objectively certain to occur in the future, a court’s timesharing determination “is based upon the facts before it at the final hearing, and no crystal ball is required.” Rivera, 252 So. 3d at 286.NB v. RV, Case No. 2D22-195 (Fla. 2d DCA January 18, 2023)
Second DCA in NB v. RV Provides Guidance about Events Reasonably Certain to Occur
In NB v. RV, the Florida Second District Court of Appeal distinguished two of its prior decisions on a child’s prospective best interests: Natali and Eisele.
First, distinguishing Natali v. Natali, 313 So. 3d 958 (Fla. 2d DCA 2021), the court reasoned, under a phased timesharing plan, dad could only exercise supervised visitation in phase one. He could automatically move to unsupervised visits in phase two if he satisfied two predetermined but contingent future events:
(1) his exercising regular supervised timesharing for at least three months and
(2) his filing proof of completion of a specified parenting course.
But dad’s satisfaction of those two conditions wasn’t reasonably and objectively certain to occur at an identifiable future time; instead, that could take months or years.
Next, the court distinguished Eisele v. Eisele, 91 So. 3d 873 (Fla. 2d DCA 2012) The child in Eisele wouldn’t reach kindergarten age until 20 months after the date of the final judgment. And, neither parent could home school the child. 91 So. 3d at 874. The trial court’s decision was based on concerns addressed in a social investigation report as well as the child’s lack of socialization with children of the same age.
So, the 2d DCA concluded in Eisele, the trial court had a “crystal ball” problem. The trial judge erred in determining wouldn’t be in the child’s best interests to be home schooled by either parent twenty months in the future. Instead, there would need to be a hearing to determine if it was in the best interests of the child, who was then nearly 6 years old, not to be home schooled by either parent. In sum, based on the circumstances, it was not “reasonably and objectively certain” that concerns a social investigation addressed and the child’s lack of socialization would likely be resolved by an identifiable future time. A future best interests determination had to happen.
Modifying Parenting Plan on Child’s Starting Kindergarten: An Event Reasonably Certain to Occur at an Identifiable Time
Both the 2d DCA in NB v. RV and 5th DCA in Rivera v. Purtell, 252 So. 3d 283 (Fla. 5th DCA 2018) found no crystal ball problem in ordering automatic modification of timesharing once a child started kindergarten. The NB v. RV court, followed Rivera’s reasoning that Arthur 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)
For Events Reasonably Certain to Occur that Affect Support, Provide Sufficient Detail About Expenses Related to the Event.
Courts uphold prospective modifications carefully conditioned on specifically stated changes in circumstances. The changes must “virtually preclude” unfairness to either party. Kangas v. Kangas, 420 So. 2d 115 (Fla. 2d DCA 1982); Umstead v. Umstead, 620 So. 2d 1074 (Fla. 2d DCA 1993).
In Harby v. Harby, 331 So. 3d 814 (Fla. 2d DCA 2021), mom and dad signed a marital settlement agreement. They agreed, if dad wanted to sell their Florida home to pay off the mortgage, that would cut his mortgage expense and need for alimony from mom. Although dad’s selling the home was fairly certain, the expenses related to this fairly certain event weren’t fairly certain.
Automatically modifying alimony and child support for the “fairly certain event” was error without evidence specifying how expenses would change. Dad’s testimony about how his expenses could change, standing alone, didn’t “virtually preclude” unfairness to mom from the court’s modifying alimony and child support.
Conditional Provisions Not Allowed When Event Isn’t Reasonably Certain to Occur
Amiot v. Olmstead, 321 So. 3d 305 (Fla. 1st DCA 2021), in which the court struck a conditional provision the trial court included in an order modifying timesharing a condition that, if mom were to relocate back from California to within 60 miles of Bay County Florida, timesharing would revert to the original schedule the parties agreed to in their marital settlement agreement.
Snowden v. Snowden, 985 So. 2d 584 (Fla. 5th DCA 2008), in which the trial court rejected a dad’s petition to modify custody and enforce a final judgment of dissolution of marriage that provided custody would change if either parent drank alcohol or took illegal drugs while the kids were in the parent’s custody.
Conditional Provision Allowed: Expected Date Event Is Reasonably Certain to Occur
Stevens v. Stevens, 929 So. 2d 721 (Fla. 5th DCA 2006), in which a planned custody change based on an expected date-certain event, namely, dad’s finishing his tour of duty, enabled the court to modify prospectively timesharing.
Don’t all parenting plans, which govern parents’ future conduct, derive from parents’ or judges’ predictions about future events? For more about predictions, read here.
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