For events you anticipate, can you build into your parenting plan modifications?
CN v. IGC: Leaves Open Question of Whether Agreed On Contingencies are “Modifications”
In C.N. v I.G.C., Case No. SC20-505 (Fla. April 29, 2021), a mother invited the Supreme Court of Florida to hold a contingency she and the other parent anticipated and built into their Parenting Plan wasn’t a “modification.” Mom claimed the contingency wasn’t an “unanticipated” change in circumstances, as section 61.13(3), Florida Statutes requires for there to be a 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. Mom got 57 percent overnights; dad, 43 percent. Two years later, she accused him 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. The trial judge further found mom couldn’t coparent effectively and support the child’s relationship with dad.
The trial court modified the timesharing, giving dad 2/3 and mom 1/3 overnights. The court ordered 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 towards which she could work to get back her lost time. The Fifth DCA disagreed and certified conflict with the 2d, 3d, and 4th District Courts of Appeal. Those DCAs, final judgments modifying timesharing had to 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). Wade authorizes a court to anticipate and account for contingencies in a parenting plan on the front end. Read more here.
In opposition, Dad pointed to Arthur v. Arthur, 54 So. 3d 454 (Fla. 2010). Arthur held the trial judge can’t predict if future relocation is in a child’s best interests. The Supreme Court held judges cannot engage in prospective-based analysis in determining a child’s best interest. See discussion here. Dad further argued it wasn’t reasonably certain the mom’s successful completion of mental health therapy would occur at a definite time. See further discussion about events reasonably certain to occur here. Therefore, the trial judge couldn’t 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 owe a parent, whose timesharing the courts modify, no list of concrete steps to regain lost time.
But, regarding modification, which requires there be an unanticipated change in circumstances, could an anticipated circumstance – successful completion of court-ordered therapy – be grounds for modification?
Leaving the question open, because answering it wouldn’t change the outcome in light its ruling on the mother’s other points, the Supreme Court declined her 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. In your collaborative parenting plan, you may attempt to anticipate and reach agreements about contingencies. As you collaborate with the other parent, what might you propose to include in your final judgment and its contents? Even if a court later were to find both parents’ efforts to build in contingencies were unenforceable attempts to get around the “unanticipated circumstances” requirement for technical legal “modification,” your thinking about future events helps:
- encourage constructive thought about options for your child
- give you and the child’s other parent a longer-term perspective, beyond the present turmoil you both might be experiencing
- you and the other parent consider opportunities to make decisions about future events in your child’s life
- discussion with your attorney about the legal burden of proof in modifications
- exploring provisions for alternative dispute resolution for resolving impasses
- thinking about inflexibility and other consequences of either parent’s being unable to meet the substantial change in circumstances test, including litigation costs and delay.
Concepts in a Hypothetical Parenting Plan Covering Future Events
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.