The Challenges of Modifying Custody Agreements in a Florida Divorce Case

Many changes may occur in parents’ lives during the time their children are growing up. They may lose their jobs multiple times and be forced to move each time, they may start constantly disparaging the other parent in front of the child, or in extreme situations, they may start engaging in inappropriate or abusive behavior towards the child. Modifying custody after a Florida court enters a parenting plan and time-sharing schedule is an uphill battle. However, it can sometimes prove necessary in the event the previously decided custody arrangement is no longer in the best interests of the child.

What is the Test for Modifying a Parenting Plan?

In Wade v. Hirschman, 903 So.2d 928 (Fla. Sup. 2005), the Florida Supreme Court enumerated a two-part test that Florida courts should apply when considering whether to modify a parties’ parenting plan and timesharing schedule. The Wade test provides that the moving party must prove two elements:

1. There has been a substantial and material change in circumstances since the initial custody determination; and
2. The child’s best interests justify the change.

What is a “Substantial Change in Circumstances”?

There are many changes that may constitute a “substantial change in circumstances” warranting a custody modification. Some common examples may include:

• Unfitness of a parent – This may include lack of adequate supervision, mental or physical abuse of the child.
• Unstable home environment in a custodial parent’s home – This includes constantly changing the child’s residence, having multiple unfamiliar and careless caretakers for the child.
• Inappropriate actions by a custodial parent – This includes introducing the children to multiple romantic guests, exposing the children to child pornography or substance abuse.
• The custodial parent tries to alienate the child from the noncustodial parent.
• Interference by the custodial parent in the child’s schooling or development

What Does a Florida Court Consider When Determining What is in the Child’s Best Interests?               

The second prong of the Wade test directs Florida courts to consider whether the change would be in the child’s best interests. Florida law provides some guidance to courts by indicating a court should employ a totality of the circumstances approach by evaluating “all of the factors affecting the welfare and interests of the particular minor child.” Florida Statute 61.13 points to several factors as examples for courts to consider, including, but not limited to:

1. The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required;
2. The demonstrated capacity and disposition of each parent to determine, consider and act upon the needs of the child as opposed to the needs or desires of the parents;
3. The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
4. The geographic viability of the parenting plan given the age of the children;
5. The mental and physical health and moral fitness of the parents; and
6. The reasonable preference of a child if the court deems the child to be of sufficient intelligence, understanding and experience to express a preference.

Contact an Experienced Winter Park Family Law Attorney Today

Establishing and building a case for modifying custody can be a difficult and daunting task. The experienced Winter Park family law attorneys at Cotter & Zelman, P.A. can help you gather evidence to support your claim and discuss strategies for moving forward with a modification claim during the emotional process. Contact us today for a free case review.