A court has an ongoing obligation to safeguard minor children’s best interests. Collaborating parents may agree to enlist court review to approve modifications when events they anticipated in their parenting plans occur.
Parents’ attempts to trigger automatic modifications for uncertain future events, which may not take place for months or years (if they ever do), invite reversal. For example, in Natali v. Natali, Case No. 2D20-513 2d DCA Mar 26, 2021, the court rejected a parenting plan that provided multi-phased timesharing arrangements. Such arrangements would automatically progress once predetermined but contingent events might happen.
First, dad had to exercise supervised visitation for 3 months. Second, he had to take a parenting course and file with the court proof of completing it. But these benchmarks could take months or years to occur. By then, however, circumstances bearing on the best interest analysis could change significantly. The parenting plan, which provided for no court intervention or decision-making for the dad to advance to the next phase of multi-phased timesharing, fell short.
Enlist Court Review
You have power to provide adjustments in parenting plan provisions for events likely to occur. But, to avoid the prohibition on a judge’s performing “prospective-based” analysis of your child’s best interests, you and the child’s other parent should enlist court review of the adjustments. You should ask the court to approve them. As events you and the other parent planned for come about, ask the court to confirm the modifications are in your child’s best interest. If you reach impasse, consider ways to resolve it without fighting in court.
Failing to Provide A Mechanism to Resolve Impasse
Parents who failed to provide a mechanism for resolving their impasse on the private school their child should attend found themselves in costly, contested litigation, including an appeal. See Watt v. Watt, 966 So. 2d 455 (Fla. 4th DCA 2007). The settlement agreement provided no mechanism to resolve an impasse on the private high school their child should attend, to which both parents had to agree. Their impasse on this vital matter was unanticipated when they signed their settlement agreement.
The father objected to modification. He contended his failure to consent, standing alone, could not meet the substantial change in circumstances test for modification. The mother convinced the judge, and the appellate court confirmed, the impasse constituted a substantial change in circumstances. The impasse warranted modification of the parenting plan and the court’s giving mom final say over the school decision. Importantly, the parties had provided no mechanism for resolving the impasse.
When Might Staged Parenting Work?
On the other hand, staged parenting plans providing for resolving impasse may work. As the concurring judge in Natali wrote:
“…as long as a family judge has dutifully considered the statutory factors and can apply those factors to events that are ‘reasonably and objectively certain to occur at an identifiable time in the future,’ Rivera, 252 So. 3d at 286, based on the competent, substantial evidence presented, it may be an appropriate exercise of discretion, in certain cases, for the family law judge to fashion a ‘staged’ parenting plan that includes limited changes or alterations over the course of time based upon the occurrence of those future events.“
How Will You Resolve Disputes About Future Events You’ve Covered in Your Parenting Plan?
Parents in intact relationships sometimes disagree about decisions for their children. Most find ways to resolve their disagreements. Parents whose bonds as partners are dissolving must continue coparenting. Even when they have anticipated and provided in their parenting plans for future significant events in their children’s lives, they may disagree. How should the provisions apply to anticipated events when they unfold?
Parents who choose the collaborative process often make alternative dispute resolution (ADR), such as returning to the collaborative team or going to mediation, a condition before going to court. Courts enforce agreements imposing ADR conditions before filing adversarial lawsuits.
Courts Enforce Alternative Dispute Resolution Commitments
In Rudnick v. Harman, 301 So. 3d 266 (Fla. 4th DCA 2020), an ex-husband’s successfully petitioned for certiorari review of an order granting, without hearing evidence, an ex-wife’s motion to waive mediation. The parties’ post-judgment settlement agreement made mediation a condition precedent to filing a child support or other modification action. The court held the requirement in the marital settlement agreement to mediate before suing couldn’t be meaningfully enforced postjudgment. That would defeat the purpose for presuit ADR: avoiding filing the lawsuit in the first place.
Contrast that outcome with cases in which pursuing alternative dispute resolution was no requirement before filing suit. For example, see Beeline Petro, Inc. v. HSA Golden, Inc., Case No. 2016-CA-2977-O (Circuit Court of the Ninth Judicial Circuit, Orange County, Florida October 24, 2016) (because the contract between the parties did NOT make mediation a condition precedent to filing suit, the trial court – county court – did not depart from the essential requirements of law in denying the motion to dismiss) (Per curiam). Likewise, in Kissimmee Health Care Associates v. Garcia, 76 So. 3d 1107 (Fla. 5th DCA 2011), mediation was no condition precedent to filing suit, where Florida’s nursing home statute didn’t specify which party must initiate mediation and require mediation as a condition before suing.
How will you resolve future impasses? To read about options to consider, read more here.