Can Contingencies Parents Build into their Parenting Plans Be Modifications?

American Alligator. Photo by Jack Kelly (Unsplash)

Can you build into your parenting plan modifications to it for events you anticipate?

The Supreme Court of Florida in C.N. v I.G.C., Case No. SC20-505 (Fla. April 29, 2021), declined to take up a mother’s invitation to hold a contingency that parents anticipate and build into their Parenting Plan is not a “modification.” She claimed the contingency wasn’t an “unanticipated” change in circumstances, as section 61.13(3), Florida Statutes requires for modification. 

Facts of CN v. IGC

In 2014, the parents signed a paternity agreement and Parenting Plan. The court incorporated their agreement in a final judgment of paternity, with mom having 57 percent overnights and dad 43 percent. Two years later, mom accused dad of physically abusing the child, which he disputed.  He 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 and rendered her unable to coparent effectively and support the child’s relationship with dad.

The trial court modified the timesharing, giving dad two-thirds and mom one-third overnights and ordering her to begin intensive mental health therapy, likely to take significant time and perhaps years.  The Fifth DCA, in C.N v. I.G.C, 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 she could work toward to regain her lost timesharing.  The Fifth DCA disagreed and certified conflict with the 2d, 3d, and 4th Districts, which held final judgments modifying timesharing must 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) allowing a court to anticipate and account for contingencies in a parenting plan on the front end. See discussion here.

In opposition, Dad pointed to Arthur v. Arthur, 54 So. 3d 454 (Fla. 2010) (the trial judge cannot predict if future relocation is in a child’s best interests), prohibiting judges to engage in prospective-based analysis in determining a child’s best interest.  See discussion here. The mom’s successful completion – if ever – of mental health therapy was not a condition reasonably certain to occur at a definite time. See discussion here. Therefore, the trial judge could not look into a crystal ball and know what parenting arrangements might then be in the children’s best interests.

The Ruling and Declined Decision 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 do not owe a parent whose timesharing the courts modify a list of concrete steps to regain lost timesharing.

But could an anticipated circumstance – successful completion of court-ordered therapy – be grounds for modification? The Supreme Court of Florida passed on mom’s 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.

Creativity in the Collaborative Process: Anticipating Contingencies

Judicial restraint doesn’t limit your creativity in the collaborative process, however, to anticipate contingencies in your parenting plan. As you collaborate with the other parent, what might you propose to include in your final judgment and its contents?

As you read the other sections in this series, consider a hypothetical parenting plan in which:

  • You and the other parent agree and judge states that the statutory modification process and burden of proof under 61.13(3) and Wade v. Hirschman will not apply in an action to revisit “front end,” contingencies you have agree to and built into your Parenting Plan;
  • You and the other parent have specified contingencies of definite duration and likelihood of taking place;
  • When foreseen contingencies ensue, you and the other parent have agreed to submit future impasses to alternative dispute resolution such as the collaborative process;
  • You and the other parent agree and the judge reserves jurisdiction to maintain a role to ascertain the child’s best interests when the contingencies occur; and 
  • The judge reserves jurisdiction either (a) to accept an agreed modified Parenting Plan and modification judgment you and the other parent will present to the court or (b) to hold a hearing at which the judge will receive evidence and independently determine if the existing Parenting Plan, the proposed modified Parenting Plan, or a different Parenting Plan is in the child’s best interest, applying the legal standard set forth in the final judgment, if different from the substantial change in circumstances standard.

Read more:

Part 1: Collaborative Family Law Agreements and A Child’s Prospective Best Interests 

Part 2: Collaborative Family Law Agreements: Florida Parenting Plan Basics

Part 3: Collaborative Family Law Agreements: Protecting a Child’s Future Best Interests

Part 4: Children’s Best Interests: Parenting Plans and Events Reasonably Certain to Occur

Part 5: Children’s Best Interests: Parenting Plans Entail Prediction

Part 6: Collaborative Parenting Plans: Extraordinary Burden for Modification

Part 7: Collaborative Family Law Agreements: Florida Favors Settlement Agreements

Part 8: Collaborative Parenting Plans: Judges Must Safeguard Children

Part 9: Collaborative Parenting Plans: Anticipating Events Reasonably Certain to Occur

Part 10: Parenting Plan Modification: Enlist Court Review When Predicted Events Occur

Part 11: Collaborative Parenting Plans: How Will You Resolve Future Impasses?

Part 13: Parenting Plans: Agreeing to a Different Burden for Modification

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