Post-Judgment Modification in Florida Family Law – Part 1
When Can a Florida Court Change a Parenting Plan or Time-Sharing Schedule?
A Final Judgment in a Florida family-law case is intended to provide stability and finality. But families do not remain frozen in time. Children grow older, parents move, employment circumstances change, safety concerns may arise or disappear, and arrangements that once worked may become impractical.
Florida law therefore allows a parent to seek modification of certain provisions of a Final Judgment when circumstances have sufficiently changed.
Modification, however, is not a second opportunity to retry the original case. A parent generally cannot obtain a different parenting plan simply because the existing arrangement has become inconvenient, because the parent disagrees with the original judge, or because the parent now believes another schedule would be preferable.
For parenting plans, parental responsibility, and time-sharing, Florida law generally requires the party requesting modification to establish:
- A substantial and material change in circumstances; and
- That the requested modification is in the best interests of the child.
See § 61.13, Fla. Stat.
Both requirements matter.
What Can Be Modified After a Final Judgment?
Post-judgment family-law litigation may involve several different issues, including:
Parenting Plans
A parenting plan establishes how parents will share responsibility for their child, communicate with one another, make decisions, and handle other aspects of parenting.
Time-Sharing
The time-sharing schedule determines when the child will spend time with each parent, including weekdays, weekends, holidays, school breaks, and vacations.
Parental Responsibility
Parental responsibility concerns the authority to make important decisions affecting the child, including decisions involving education, medical care, and other significant matters.
Supervised Time-Sharing
When a Final Judgment requires a parent’s time with the child to be supervised, the parent may later seek to reduce or eliminate supervision. Completing the requirements contained in the prior order, however, does not automatically result in unrestricted time-sharing.
Child Support
Child support may also be modified, although the legal analysis is different from modification of a parenting plan or time-sharing schedule. We discuss child-support modification in Part Two of this article.
The Two-Part Modification Standard
Section 61.13(3), Florida Statutes, provides that a determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without both a substantial and material change in circumstances and a determination that modification is in the child’s best interests.
The Florida Supreme Court addressed the substantial-change requirement in Wade v. Hirschman, 903 So. 2d 928 (Fla. 2005).
The importance of Wade is that modification proceedings should not be treated like an entirely new custody case. There is already an existing court order, and that prior order establishes the starting point.
The parent seeking modification must therefore explain what has changed since the prior judgment and why that change is important enough to justify reopening the parenting arrangement.
The Prior Final Judgment Establishes the Baseline
One of the most important documents in any modification case is the existing Final Judgment.
Suppose the court previously ordered supervised time-sharing or sole parental responsibility because of findings concerning domestic violence, substance abuse, serious communication problems, contempt, mental-health concerns, failure to follow court orders, or other safety-related issues.
A later modification petition should address those circumstances directly.
What has changed?
What evidence shows that the previous concerns have been resolved or materially reduced?
How long has the improvement continued?
How does the change affect the child today?
A parent generally cannot satisfy the modification standard merely by repeating evidence that existed during the original case or arguing that the original judge reached the wrong conclusion.
The purpose of a modification proceeding is to evaluate new or materially changed circumstances, not simply to relitigate the past.
What Is a “Substantial and Material Change”?
There is no single formula that determines whether a change is substantial and material. Florida courts evaluate the particular facts affecting the particular family.
Depending upon the circumstances, potentially significant changes may include:
- A major change in where a parent lives that materially affects transportation, school attendance, exchanges, or the operation of the parenting plan;
- A significant change in a child’s educational, medical, developmental, or emotional needs;
- A significant change in a parent’s circumstances that affects the parent’s ability to care for the child or comply with the existing plan;
- A sustained improvement or deterioration in the parents’ ability to communicate and co-parent;
- New or materially different circumstances involving domestic violence, abuse, neglect, substance abuse, or other child-safety concerns; or
- Other post-judgment developments that directly affect the child’s welfare or the practical operation of the existing parenting plan.
The important question is not merely whether something changed.
The question is whether the change is sufficiently substantial and material to justify changing an existing court-ordered parenting arrangement.
Completing Counseling or Other Services Does Not Automatically Change the Order
This issue frequently arises when a Final Judgment required a parent to complete parenting classes, anger-management programs, counseling, substance-abuse treatment, psychological services, or another court-ordered program.
Completion of the required service can be important evidence.
It does not, standing alone, necessarily entitle the parent to modification.
The court may consider matters such as:
- Whether the required program was actually completed;
- Whether completion occurred promptly or only after significant delay;
- Whether the program addressed the concerns underlying the original judgment;
- Whether the parent’s conduct has actually changed;
- Whether the improvement has continued over time;
- Whether the parent has complied with other provisions of the Final Judgment;
- Whether the parent can now communicate appropriately and make child-focused decisions; and
- Whether the proposed change would presently benefit the child.
A certificate showing completion of a course may help establish part of the case. The parent must still connect that evidence to a genuine change in circumstances and to the child’s current best interests.
The Child’s Best Interests Remain the Primary Consideration
Even if the court finds a substantial and material change, the inquiry does not end there.
The requested modification must also be in the child’s best interests.
Section 61.13(3), Florida Statutes, contains numerous factors that courts consider when establishing or modifying parental responsibility and parenting arrangements.
Among other matters, a court may consider:
The Parents’ Ability to Encourage the Child’s Relationship With the Other Parent
The court may examine whether each parent encourages frequent and continuing contact with the other parent and whether the parent complies with the existing time-sharing schedule.
The Parents’ Ability to Put the Child First
Courts may consider whether a parent is capable of placing the child’s needs above the parent’s personal conflict with the other parent.
Stability and Continuity
The child’s home, school, activities, community, and established routine may be significant.
Geographic Practicality
A parenting schedule must work in the real world. Distance between homes, school schedules, employment schedules, traffic, transportation, and exchange arrangements can all affect whether a proposed schedule is workable.
Communication and Co-Parenting
The ability to exchange information, discuss important issues, and keep the other parent informed can be important when determining parental responsibility.
Domestic Violence, Abuse, Neglect, and Safety
Evidence concerning domestic violence, sexual violence, child abuse, abandonment, neglect, or other safety-related matters can significantly affect the court’s determination.
Protecting the Child From Litigation
Florida law specifically directs courts to consider a parent’s ability to protect a child from ongoing litigation, including refraining from discussing litigation with the child, sharing litigation materials with the child, or disparaging the other parent.
The Child’s Developmental Needs
What works for a four-year-old may not work for a fourteen-year-old. The court may consider the child’s developmental stage and the parents’ abilities to meet the child’s current needs.
The statute contains additional factors, and no modification case should be evaluated on a single consideration alone.
What About Florida’s Presumption of Equal Time-Sharing?
Florida law currently establishes a rebuttable presumption that equal time-sharing is in the best interests of a minor child, unless otherwise provided by statute or agreed to by the parties.
See § 61.13(2)(c)1, Fla. Stat.
That presumption is important, but it should not be confused with the separate requirements governing modification of an existing Final Judgment.
If there is already an established parenting plan or time-sharing order, a parent seeking modification generally must still establish the legally required substantial and material change in circumstances.
In other words, the equal-time-sharing presumption does not automatically reopen every prior parenting plan.
The modification statute still requires the court to evaluate what has changed since the prior order and whether changing that order is in the child’s best interests.
Modification Cases in South Florida
Families in Broward, Miami-Dade, and Palm Beach Counties often face practical issues that can have a major effect on time-sharing.
South Florida parents may live relatively few miles apart but still face substantial travel times because of traffic, school schedules, bridges, highways, work schedules, and transportation difficulties.
A proposed schedule should therefore address practical questions such as:
- Where does the child attend school?
- How long will the child spend traveling between homes?
- Who will provide transportation?
- How will weekday exchanges operate?
- How will extracurricular activities be handled?
- Can both parents realistically comply with the proposed schedule?
- Will the arrangement maintain a reasonable bedtime and school routine?
- How will holidays and school vacations operate?
A parenting plan that appears equal on paper may not necessarily be practical for the particular child.
The court’s focus remains the best interests of that child and that family.
Preparing for a Modification Case
Before requesting modification, a parent should carefully review the existing Final Judgment and any later orders.
The parent should identify exactly why the existing arrangement was entered and then determine what facts have changed since that time.
Documentation can be extremely important.
Depending upon the case, relevant evidence may include records of counseling or treatment, school records, medical information, employment records, communications between the parents, records relating to prior supervised visits, calendars, transportation information, and evidence of compliance or noncompliance with previous court orders.
A useful modification case tells a chronological story:
This was the situation when the Final Judgment was entered.
These events occurred afterward.
Those developments materially changed the circumstances.
Because of those changes, this particular modification is now in the child’s best interests.
Coming in Part Two
In Part Two, we discuss several of the most frequently litigated post-judgment issues:
- Ending supervised time-sharing;
- Changing sole or shared parental responsibility;
- Modifying child support;
- What should be alleged in a Supplemental Petition for Modification;
- Motions to dismiss and legally insufficient modification petitions; and
- Evidence parents should begin collecting before going back to court.
This article is provided for general informational purposes only and does not constitute legal advice or create an attorney-client relationship. Florida law and court procedures may change, and the outcome of any case depends upon its particular facts and circumstances.
International Law Office of Gabriel Jose Carrera, P.A.
South Florida Family Law
www.AttorneyThatRides.com
