Parenting plans govern parents’ future conduct in relationship towards each other and towards their children. These relationships comprise regular and holiday timesharing schedules, decision making about major events in a child’s life, and communications. Parents and judges necessarily look ahead to create parenting plans that promote children’s best interests. Therefore, parenting plans entail prediction. Yet, under Florida’s extraordinary burden for modifying parenting plans generally stops a judge from engaging in “prospective-based” analysis of a child’s best interests.
Don’t Parenting Plans Govern Future Conduct and Entail Prediction?
As the concurring judge observed in Natali v. Natali, 313 So. 3d 958 (Fla. 2d DCA 2021), parenting plans govern future conduct. Yet the majority of the court rejected a prospective-based best interest analysis based on factors that could change over an extended time. See also TA v. AS, 335 So. 3d 208 (Fla. 2d DCA 2022) (following Natali and rejecting a multiphase timesharing schedule upon completion of certain events).
Florida’s Best Interest Factors Include a Future Focus: Parenting Plans Entail Prediction
Moreover, Florida’s “best interest” factors in Section 61.13(3), Florida Statutes, which trial judges must make findings about when adopting initial Parenting Plans, include:
- The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties [61.13(3)(b)];
- The geographic viability of the parenting plan . . . and the amount of time to be spent traveling to effectuate the parenting plan [61.13(3)(e)];
- Any other factor that is relevant to the determination of a specific parenting plan, including the time- sharing schedule [61.13(3)(t)]
Imperfect Evidence About the Future
At the time of an initial divorce or paternity proceeding, there may be murky evidence or no evidence about future events. Alternatively, clear evidence may show such events, although probable, are not certain to occur at an identifiable time. As a result, this indefiniteness may cause your judge to play it safe and make no predictions or orders about the future.
That leaves you and your child’s other parent, even when you know you’ll want to address predictable future events, thinking you will face an extraordinary burden of proof to modify your parenting plan.
Suppose your judge initially won’t (because the judge can’t) engage in prospective-based “best interest” determinations. When predictable events do take place, you or the other parent may conclude filing an adversarial modification lawsuit is your only option. But it isn’t.
Moreover, even for limited prediction the law does allow a judge, why leave that to someone who has never met and doesn’t know your child? Instead, you and the child’s other parent may want to anticipate and plan for future events.
You should be able to plan for your child’s future, shouldn’t you?
Parents Plan for Many Events for Their Children
Parents in intact relationships and those who are separating plan for milestones and future events for their children. Examples include:
- Starting kindergarten or the next grade.
- Graduating from grade school or middle school.
- Getting tutoring or prep courses for exams.
- Adjusting school boundary designations for planned future changes in residence.
- Securing and continuing for a special needs child an Individual Education Plan (IEP), therapies, a special needs trust, guardianship, and skilled caretaking.
- Engaging with family and friends, including attending playdates, birthday parties, and celebrations.
- Participating in extracurricular activities, including sports, arts, and clubs
- Going on vacations.
- Traveling abroad when of age.
- Introducing future partners and blended family members.
- Beginning or continuing medical care or therapy.
- Getting braces.
- Beginning or continuing mental health treatment, including counseling as the need arises.
- Driving.
Should parents and courts be able to create flexible parenting plans anticipating and adjusting for such events?
What Happens When Attempts to Plan Collide With Florida’s Modification Burden?
Parents’ and courts’ best intentions may meet the buzzsaw of Florida’s modification standard. That standard is called the “substantial change in circumstances” test. An element of this test is the circumstances you believe justify modifying your parenting plan were not reasonably contemplated at the time of the final judgment. Read more here.
Being unable to meet the burdensome test for modification, for circumstances reasonably contemplated and predictable at the time of the final judgment – even if not “certain” – can:
- Create inflexible Parenting Plans,
- Delay initial settlement of parenting issues, because parents get stuck on “what ifs” about predictable circumstances, and
- Invite undue future fighting in costly, emotional, and time-consuming proceedings.
Related Blog Posts:
- Collaborative Family Law Agreements A Child’s Prospective Best Interests
- Collaborative Family Law Agreements: Parenting Plan Basics
- A Child’s Future Best Interests and Collaborative Family Law Agreements
- Florida Parenting Plans and Events Reasonably Certain to Occur
- Collaborative Parenting Plans: Extraordinary Burden for Modification
- Collaborative Family Law: Florida Favors Settlement Agreements
- Collaborative Parenting Plans: Judges Must Safeguard Children
- Collaborative Parenting Plans: Anticipating Events Reasonably Certain to Occur
- Parenting Plan Modification: Enlist Court Review When Events Occur
- Collaborative Parenting Plans: How Will You Resolve Future Impasses?
- Can Contingencies Parents Build into their Parenting Plans Be Modifications?
- Florida Parenting Plans: Agreeing to a Different Burden for Modification