Modification Of Divorce Or Custody

Modification Of Divorce Or Custody

After an initial custody determination was made (for older divorces) or a time-sharing schedule was established (for more recent divorces), the best interest of the child is not the first aspect of time-sharing the court will consider to modify the time-sharing/custody.

Rather, you must first show a substantial change of circumstances. Section 61.13, Florida Statutes, specifically states: “A determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child.”

There are three critical words:

Substantial

Material

Unanticipated

The easiest term to define is the term “unanticipated.” If the parties knew of the circumstances at the time the original divorce was entered, and now one party wants to use it against the other party at a later time, the conditions were anticipated. For those that have access to court opinions, the cases of Paskieicz v. Paskiewicz, 967 So. 2d 277 (Fla. 3rd DCA 2007), and the Florida Supreme Court case of Wade v. Hirschman, 903 So. 2d 928 (Fla. 2005), are insightful. For example, if you knew the other parent had a substance abuse problem at the time the initial custody order was entered, you cannot then six months later claim you are the more fit parent because of the other parent’s substance abuse problem.

As to “substantial” and “material,” your judge’s definition of these terms are very important. As the Florida Supreme Court stated, the trial court’s determination on what changes are substantial and material carry a lot of weight in the final determination on whether the court can then consider the best interest of your child.

However, what we do know is that before you decide you want to change time-sharing, you need to have a lot more evidence than simply believing that your child will be better off. Some instances where I can envision a substantial change in circumstances would include a parent that develops an addiction problem, enters into an abusive relationship where the child is exposed to the abuse, or where the parent continuously interferes with the other parent’s time-sharing. These are substantial, material to the child, and were unanticipated.

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