In Florida, parents face an extraordinary burden for modification of a parenting plan. This burden is called the “substantial change in circumstances” test. The test for modification applies unless the initial final judgment provides otherwise.
In Wade v. Hirschman, 903 So.2d 928 (Fla. 2005), the Florida Supreme Court considered the issue of what test trial courts should use in modifying rotating custody agreements. The court concluded that unless otherwise provided in the final judgment, the two-part “substantial change” test used in Cooper v. Gress, 854 So.2d 262, 267 (Fla. 1st DCA 2003), applies to the post-dissolution modification of all custody agreements.
The substantial change in circumstances test the Florida Supreme Court articulated in Wade v. Hirschman, 903 So. 2d 928 (Fla. 2005) applies to the modification of a divorce decree providing for the custody and care of a child. Likewise, in paternity modifications, the substantial test applies. See, e.g., DMJ v. AJT, 190 So. 3d 1129 (Fla. 3d DCA 2016); George v. Lull, 181 So. 3d 538 (Fla. 4th DCA 2015); Gaston v. Kanter, 982 So. 2d 34 (Fla. 1st DCA 2008).
Courts have described the substantial change test as imposing an extraordinary burden for modification of parenting plans. See Hutchison v. Hutchison, 287 So. 3d 695 (Fla. 1st DCA 2019); Ragle v. Ragle, 82 So. 3d 109 (Fla. 1st DCA 2011) (quoting Boykin v. Boykin, 843 So. 2d 317 (Fla. 1st DCA 2003)).
For Custody Modification, the Extraordinary Burden to Show a Substantial Change in Circumstances Extends to Settlement Agreements
A decree for purposes of the substantial change test includes both a decree that has incorporated a stipulated agreement concerning child custody and a decree awarding custody after an adversarial hearing. See Frazier v. Frazier, 109 Fla. 164, 147 So. 464 (1933).
This substantial change test requires the parent seeking modification of custody to show both that the circumstances have substantially, materially changed since the original custody determination and that the child’s best interests justify changing custody. Furthermore, the substantial change must be one not reasonably contemplated at the time of the original judgment. See Cooper, 854 So.2d at 265.
Final Judgments May Provide a Different Standard than the Extraordinary Burden for Modification Test
Wade v. Hirschman says the extraordinary burden for modification known as the substantial change test applies unless the judgment otherwise provides. See, e.g., Mooney v. Mooney, 729 So.2d 1015 (Fla. 1st DCA 1999) (mom and dad agreed that beginning of school would constitute a change in circumstances when they’d readdress custody); Greene v. Suhor, 783 So.2d 290 (Fla. 5th DCA 2001) (custody order provided that either parent could seek reconsideration of the custody issue when the child started school without showing a change in circumstances).
That exception gives parents opportunity to reach settlement agreements providing for a less burdensome standard for modification than the substantial change in circumstances test. See, for example, Walker v. Wallace, Case No. 4D22-1665 (Fla. 4th DCA February 8, 2023). In Wallace, dad travelled for work when the parties settled their divorce. However, once dad stoped traveling for work, the parents’ agreement said no substantial change in circumstances would need to be shown to increase his time with the kids. Instead, the parents agreed “it is in the best interests of the children” to spend more time with dad.
Parents may tap into their freedom and power to contract in the collaborative process to achieve creative solutions otherwise unavailable to a judge.
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