Florida Parenting Plans: Agreeing to a Different Burden for Modification

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You may agree your judgment will provide for a lesser burden for modification than the substantial change in circumstances test. Read more about that extraordinary burden here.

The Supreme Court of Florida noted a judgment could provide a different standard to be applied when a parent seeks to modify custody. See Wade v. Hirschman, 903 So.2d 928, 932 n. 9 (Fla. 2005). Wade approvingly cites Mooney v. Mooney, 729 So.2d 1015, 1016 (Fla. 1st DCA 1999) (parents agreed that the beginning of school would constitute a change in circumstances which would require custody to be readdressed) and Greene v. Suhor, 783 So.2d 290, 290-91 (Fla. 5th DCA 2001) (custody order provided that either parent could seek reconsideration of the custody issue when their child started kindergarten, without showing a change in circumstances).

In Greene, the dad did not have to meet the heavy substantial change in circumstances burden of proof. The modification proceeding should have proceeded as if it were an initial custody determination. The best interests of the child standard applies to initial determinations. The initial paternity final judgment directed the child would be with each parent alternating months until he started kindergarten. Then, the child’s primary residence would be with mom. The judge provided either party could seek reconsideration of custody when the son started school without showing a substantial change in circumstances.

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Final Judgments May Specify Lesser Burden of Proof for Modification

Other Florida cases have allowed some parents to seek modification without demonstrating a substantial change in circumstances.

A trial judge correctly modified a stipulated Parenting Plan, incorporated into a paternity judgment, governing parents’ timesharing for their three children. Idelson v. Carmer, Case No. 2D20-1221  (Fla. 2d DCA June 18, 2021). The parents relationship was high conflict.  The family court correctly observed that it need not decide whether a substantial unanticipated change in circumstances had occurred, to include a child in a parenting plan. The parents had agreed to incorporate the child into the parenting plan upon either parent’s filing a motion after the child’s 3rd birthday. That precipitating event occurred.

…[T]he provision is clear that the parties intended the family court to incorporate their youngest child into the parenting plan upon the filing of a motion and without the need to show that a substantial unanticipated change in circumstances had occurred.

Idelson v. Carmer, Case No. 2D20-1221 (Fla. 2d DCA June 18, 2021).

But, for circumstances unrelated to precipitating event – the child’s turning 3 – that the parents had specified, the trial judge went too far. The court erred when it substantially modified their parenting plan without finding a substantial change in circumstances had occurred.

Other Cases Where a Lesser Burden for Modification than the Substantial Change in Circumstances Applied

In Segarra v. Segarra, 947 So. 2d 543 (Fla. 3d DCA 2006), a dad was not required to demonstrate a substantial change in circumstances to modify visitation. The parents’ marital settlement agreement specifically contemplated revisiting visitation when a precipitating event occurred: their child’s beginning formal school.

See also Mooney v. Mooney, 729 So. 2d 1015 (Fla. 1st DCA 1999)(neither parent bore a higher burden of proof to show a substantial change in circumstances. The parents agreed at the time of divorce the beginning of the child’s school would be a change in circumstances requiring custody to be readdressed).

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Failure to Specify a Lesser Burden for Modification

Compare cases in which final judgments failed to provide, a different standard than the substantial change in circumstances for modification. For example, in Martinez v. Kurt, 9 So. 3d 54 (Fla. 3d DCA 2009), the parents’ settlement agreement was incorporated into final judgment of dissolution of marriage. The agreement provided for schooling for their children if mom wished to relocate to Turkey. The parents would have to agree to a full-time English-speaking school in Turkey. Neither parent could unreasonably withhold consent to the school selected after they discussed school information mom would provide to dad. Both parents would meet with school personnel. They would attempt to decide jointly for the best interest of their children. If that was unsuccessful, they would go to arbitration.

The Third District Court of Appeal agreed with dad. He correctly argued the trial court impermissibly modified the final judgment of dissolution of marriage, by permitting mom to enroll the kids in a Turkish-speaking (rather than English-speaking) private school, absent finding a substantial change in circumstances had occurred and competent substantial evidence to support such a change. The parents had specifically addressed the children’s private school attendance in the settlement agreement, which the trial court had considered and ratified when it was incorporated into the final judgment. Therefore, the alleged changes did not occur post-judgment – they were not “unanticipated” – and the final judgment provided no standard for modification other than the substantial change in circumstances test.

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Read more:

Part 1: Collaborative Family Law Agreements: A Child’s Prospective Best Interests 

Part 2: Collaborative Family Law Agreements: Florida Parenting Plan Basics

Part 3: Collaborative Family Law Agreements: A Child’s Future Best Interests

Part 4: Florida Parenting Plans and Events Reasonably Certain to Occur

Part 5: Children’s Best Interests: Parenting Plans Entail Prediction

Part 6: Collaborative Parenting Plans: Extraordinary Burden for Modification

Part 7: Collaborative Family Law: Florida Favors Settlement Agreements

Part 8: Collaborative Parenting Plans: Judges Must Safeguard Children

Part 9: Collaborative Parenting Plans: Anticipating Events Certain to Occur

Part 10: Parenting Plan Modification: Enlist Court Review When Events Occur

Part 11: Collaborative Parenting Plans: How Will You Resolve Future Impasses?

Part 12: Contingencies Parents Build into their Parenting Plans in Florida Divorces

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