When Can a Judge Look Ahead?
Judges may allow a timesharing plan that applies the child’s best interests, as determined at the final hearing in a Florida divorce or paternity action, to an event reasonably and objectively certain to occur at an identifiable time. For such events, judges need no crystal ball.
Otherwise, you’d continuously have to seek permission from them after every change that inevitably occurs in your child’s life, like starting school.
Sometimes No Crystal Ball is Required
In a paternity case, Rivera v. Purtell, 252 So. 3d 283 (Fla. 5th DCA 2018), the trial court mistakenly concluded it couldn’t modify custody prospectively once the child started kindergarten. That was a reasonably certain future event, allowing the trial court prospectively to modify 50-50 overnight timesharing to giving dad majority timesharing during the school year unless mom moved within 25 miles of dad’s residence by that time.
In the Fifth District’s view, Arthur only prohibits a trial court from predicting a change in a child’s best interests as of some future date or event. For other cases, however, no “crystal ball” is required, because a judge, based on the child’s best interests as of trial, can make conclusions about events reasonably and objectively certain to happen at a definite time.
“When 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.”
Amiot v. Olmstead, Case No. 1D20-680 (Fla. 1st DCA May 11, 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; and
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; with
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.
But…don’t all Parenting Plans, which govern parents’ future conduct, derive from parents’ or judges’ predictions about future events?