Collaborative family law agreements in Florida divorce or paternity cases may address your child’s future best interests in ways Florida family judges can’t.
Judges are not prophets: A judge has no crystal ball to see how future events might affect your child’s best interests. In making decisions about timesharing and parenting arrangements, a family judge generally can’t engage in “prospective-based” analysis of a child’s best interests.
That means they must decide issues looking at a snapshot of the present. Typically, they base that look on evidence about the past. Florida law generally stops judges from extrapolating from the snapshot a movie about the future. Judges may try putting the snapshot in context of a movie they see unfolding, however. They may enter orders based on the movie they imagine. Appellate courts review such orders when a parent challenges them for improper “prospective-based” analysis, reverse them, and send them back to the trial judge.
So when can judges look ahead? They can order parenting arrangements based on future events reasonably and objectively certain to happen at an identifiable time. Examples emerge from case law; there’s no list. Guessing the events a trial judge or an appellate court will find reasonably and objectively certain to happen at an identifiable time is risky.
What can you, as a parent, do to reduce this uncertainty?
You may commit to doing the best you can by your kids and to being flexible and nonadversarial. You may consider planning for events you think will happen, try agreeing, and adopting protocols to resolve disputes out-of-court.
In the collaborative process, you may consider specifying in your parenting plan the future events and milestones you and the other parent agree are reasonably certain or simply likely to occur.
For events not reasonably certain to occur, you and the other parent may agree to override Florida’s extraordinary burden for modifying parenting plans. That test is known as the “substantial change in circumstances” test. Read more here.
You may ask a judge to adopt in your initial final judgment of divorce or paternity less burdensome requirements for modification than those the substantial change in circumstances test imposes. That less burdensome test is the “best interest” test used when judges initially decide parenting issues in a divorce or paternity case.
When events you and the other parent have foreseen later happen, you may ask the court to review your Parenting Plan provisions about those events, find they are in your child’s best interest, and adopt them in an updated parenting plan or supplemental judgment.
Such protocols would help your family work out future disagreements if you’re unsuccessful in resolving them on your own. For example, you may commit contractually to return to the neutral collaborative facilitator who worked with you on your initial parenting plan. Or, you may agree to return to the collaborative process. Instead, you may agree to mediate before filing suit for modification.