Articles Posted in Modification Of Child Custody & Visitation

A Modification of Child Custody and Visitation case was recently decided by the Florida Court of Appeal. In a case captioned Light v. Kirkland the mother appealed a judgment modifying her timesharing schedule with her child. The original divorce decree provided that the mother was to have timesharing with her child during the week, and the child was to spend three weekends per month with her father. The father filed a Supplemental Petition to Modify Timesharing. The trial court granted the father’s Supplemental Petition, and awarded the father timesharing during the week. This modification required the child to transfer to a new school.

The Florida Court of Appeal reversed the trial court’s decision. The Appellate Court pointed out that in order to modify custody and visitation, there must be a material, substantial, and unanticipated change of circumstances subsequent to the time that the divorce decree was entered. 

Additionally, in regards to the modification of child custody and visitation, timesharing must be in the child’s best interest. The fact that parents are unable to effectively communicate, or have an acrimonious relationship is an insufficient in and of itself to grant a modification. However, where parents have an acrimonious relationship that causes a child’s school performance to deteriorate, this may constitute a material, substantial, and unanticipated change of circumstances that warrants a modification of timesharing.

Modification of Child Custody and Visitation was recently discussed by the Florida Court of Appeal in a case captioned Ezra v. Ezra. In this case the father challenged the decision of the trial court granting the mother exclusive decision-making responsibility for the children’s medical and educational needs. In this case, the parents married in 2004. They had two children. They separated the day after their 6th wedding anniversary. The mother alleged abuse by the father during the course of the marriage, as well as extreme disciplinary conduct toward the children. In 2011, the lower court ratified an agreed parenting plan which granted the parties shared parental responsibility for the healthcare and education needs of the children.

Subsequent to the entry of the final judgment, the father’s financial situation deteriorated. The father’s child support payments diminished. The children were historically enrolled in a private religious school. Due to the diminution of the father’s income, the mother sought financial aid for the children. The father allegedly impeded the mother’s efforts to obtain financial aid for the children. Additionally, the father allegedly interfered with medical treatment for one of the children. The mother sought modification of parental responsibility. The trial court granted the mother’s request for unilateral decision-making authority for the children’s healthcare and educational needs.

The Florida Court of Appeal affirmed the trial court’s ruling and stated that the modification of custody and visitation and parental responsibility requires the showing of a material, substantial, and unanticipated change of circumstances that was not reasonably contemplated when the original judgment was entered. The children’s best interest is the Court’s primary consideration.

A Modification of Child Custody and Visitation case was recently decided by the Florida Court of Appeal. In a case captioned Puhl v. Puhl the Florida Court of Appeal held that the failure to keep other parent informed of issues concerning a child was an insufficient basis, in and of itself, to modify the parties’ timesharing schedule. In Puhl v. Puhl the trial court entered a Final Judgment of Dissolution which incorporated the parties agreed upon parenting plan. The parenting plan provided for shared parental responsibility and also provided that if the parties were unable to agree upon the child’s healthcare, education or religious upbringing, the mother’s decision would prevail. A year after the divorce was granted, the Father moved to modify the parties’ parenting plan. The Father alleged that the Mother was deciding healthcare issues pertaining to the child without consulting him and that the child was receiving unnecessary medical treatment.

In regards to a Modification of Child Custody and Visitation, the Florida Court of Appeals stated that in order to modify a timesharing schedule, there must be a material, substantial, and unanticipated change of circumstances, and the proposed modification must be in the best interests of the child. The burden of proving that there has been a material, substantial and unanticipated change of circumstances is upon the party seeking the modification. It is an extraordinary burden of proof. The Florida Court of Appeal stated that even if a parent does not keep the other parent apprised of the minor child’s activities and the other parent has the ability to keep themselves informed, this only constitutes a communication problem and is not a basis to grant a modification of the timesharing schedule. Accordingly, the Florida Court of Appeal denied the father’s request to modify the parties’ timesharing agreement.

To speak with a Modification of Child Custody and Visitation attorney in Palm Beach County, Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

Modification of child custody & visitation in Florida was recently discussed in a case captioned Lewis v. Juliano.  In this case, the Mother appealed an order that required her to provide the Father with her physical address as a precondition to exercising timesharing. The trial court modified the parties’ timesharing schedule as a result of the Mothers’ failure to provide the Father with her physical address.

The Mother and Father were divorced in 2014.  In 2016, the lower court modified the parties’ Final Judgment of Dissolution due to the Mother’s relocation to another state.  The Court’s order required both parents to provide each other with their residential and mailing addresses. The Father filed a Motion for Contempt of Court as a result of the Mother’s failure to provide him with her residential and mailing addresses and for failure of the Mother to permit the child to have appropriate communication with the Father.

In July 2016, the lower court found Mother in Contempt of Court as a result of her failure to provide the Father with her address. In May 2017, the Father filed a Motion to determine the status of the child’s summer visitation since the Mother had not provided him with her address. The Father argued that the child should not travel to an undisclosed address.

Modification of Child Custody and Visitation will only be granted where there is a substantial, unanticipated, material, change in circumstances and where a modification is in the best interests of the children. In D.M.J v. A.J.T a final judgment was entered by the trial court in 2011. A parenting plan was incorporated into the final judgment. The parenting plan provided that when the parties’ child was old enough to attend kindergarten the parents would decide where the child should go to school. If the parties were unable to decide, the matter was supposed to be mediates. Four years later, the mother alleged in her supplemental petition for modification of timesharing that the father had moved 25 miles from where he lived when the final judgment was entered. The mother alleged that this created a substantial change in circumstances that warranted a modification of timesharing. The Mother requested additional timesharing, increased child support, a designation as the ultimate decision maker for issues involving the child’s education. The trial court granted the Mother’s supplemental petition. The father appealed the trial court’s order.

The Florida Court of Appeal held that in a Modification of Child Custody and Visitation proceeding, the petitioning party has the extraordinary burden of proving the existence of a substantial change of circumstances. The Court held that a change of address is not a material change if the change does not involve a significant distance (more than 45 miles) from the child’s current location. Finally, when a final judgment reserves jurisdiction to determine which school children should attend and the parents can not agree, the Court must make that decision for the children based upon the children’s best interests. The best interests of the children may warrant the modification of time ­sharing . In reaching this determination concerning timesharing, the court should take into account the children’s relationship with their siblings.

To speak with a divorce attorney in Wellington, Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

Modification of child custody and visitation orders require a substantial, material change of circumstances since the Court’s prior custody decision. Additionally, the movant must demonstrate that the children’s best interest justify a change in custody. In Chamberlain v. Eisinger, the Florida Court of Appeal had a case before it in which a judgment was entered in Maryland.  The Maryland trial court gave the Mother custody of the four children. After the divorce was granted the Father moved to Florida. In 2008, the Mother and Father agreed that the Father would have custody of the oldest daughter. In 2009, the Mother and Father agreed that the Mother would have custody of the youngest daughter and the two sons. In 2010, the Mother moved to Florida. The same month that the Mother moved to Florida, the trial court in Maryland entered a new order specifying times and dates for visitation. However, the new order was based upon the premise that the Mother and the younger children were living in Maryland.

In the summer of 2010, the Father filed a Supplemental Petition for modification of child custody and visitation. The trial court granted the Father’s petition finding that there had been a substantial change in circumstances since the final judgment was entered. The Florida Court of Appeal affirmed the trial court’s ruling. The Florida Court of Appeal held that in order to grant a modification of child custody, the moving party is required to show that the circumstances have substantially and materially changed since the original order was granted and must also show that the modification would be in the children’s best interests. Additionally, the change in circumstances may not have been contemplated by the parties. There is an extraordinary burden on the party seeking to modify time-sharing to demonstrate a sufficient change of circumstances. The purpose of this high burden is to discourage parents from continually disrupting their children’s lives by repeatedly initiating custody proceedings. Although the burden is high, it does not preclude a modification of custody when there has been a significant change of circumstances and it is in the best interests of the children. In deciding whether to modify timesharing, the best interests of the children is the primary consideration. The trial court should consider evidence concerning each of the statutory time-sharing factors in reaching a determination as to the best interests of the children. Finally, the Florida Court of Appeal stated that a parent has a duty to encourage and nurture the relationship between the child and the other parent.

To speak with a divorce attorney in Jupiter, Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

In a modification of child custody and visitation case, where the parties were originally awarded shared parental responsibility, the parties must attempt to confer and agree before major decisions are made. In Dickson v. Dickson, the Florida Court of Appeal recently stated that if the parties are unable to agree on a significant issue affecting their children’s health, safety, welfare or schooling, the parties must obtain a determination of the court before they take unilateral action. In Dickson v. Dickson the final judgment of dissolution gave the parties shared parental responsibility on major decisions, including educational matters. Under the concept of shared parental responsibility, major decisions affecting the welfare of a child are to be made after the parents confer and reach an agreement. In the event that the parents are unable to agree, the dispute should be presented to the court for resolution. The selection of a child’s school is a major decision.

Since the parties were unable to agree on the child’s school, the Court of Appeal held that the mother was required to obtain court approval before unilaterally enrolling the child in a different school. Under these circumstances, the court must resolve the impasse by determining the best interests of the child. In a modification of child custody and visitation case the trial court should take evidence and use the best interests of the child standard to determine if modification is in the child’s best. The parties’ inability to agree on which school the child should attend constitutes a substantial change in circumstances warranting modification of the parenting plan.

To speak with a Palm Beach County modification of child custody and visitation attorney, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

In a modification of child custody and visitation proceeding, must the parties file Financial Affidavits.  In a modification of child custody and visitation proceeding that involves a modification of child support, it is mandatory to file financial affidavits. In Gilroy v. Gilroy, the Former Husband, sought review of the supplemental final judgment of dissolution of marriage that modified timesharing and child support based primarily on his relocation to Arizona. The Court of Appeal reversed the child support award based on the erroneous denial of the Former Husband’s request for a continuance at the final hearing. The remainder of the supplemental final judgment was affirmed. The parties divorced in 2007. At that time, they entered into a mediation agreement that awarded the Wife primary residential responsibility over the parties’ minor children with the Former Husband having significant timesharing. The agreement required the Former Husband to pay monthly child support. The Former Husband filed a supplemental petition for modification of child support. In 2012, the parties entered into another agreement in which child support was modified so that the Former Husband paid nothing.

In Gilroy v. Gilroy the Court of Appeal stated that the filing of a financial affidavit is both mandatory and non-waivable by the parties. Additionally, the Court stated that the parties must provide financial affidavits 72 hours prior to child support modification hearing. Section 61.30(14) of the Florida Statutes requires a respondent in child support modification proceedings to include his or her financial affidavit with the answer to the petition or as soon thereafter as is practicable, but in any case at least 72 hours prior to any hearing on the finances of either party. In Gilroy v. Gilroy the Former Wife did not dispute that she failed to comply with rule 12.285 and section 61.30(14) by providing her financial affidavit the day before the final hearing. [R]ule 12.285(e)(1) expressly provides that the requirement to provide a financial affidavit in supplemental proceedings “cannot be waived by the parties.” Additionally, the Court of Appeal stated in Gilroy v. Gilroy that children’s private school tuition can be added as a component on the child support guidelines worksheets. Section 61.30(1) provides that the court can make any other adjustments that are needed to achieve an equitable result which may include, but not be limited to, a reasonable modification of child custody & visitation and necessary existing expense or debt. Courts have long held that private school tuition may be awarded as part of child support if private schooling is part of the family’s customary standard of living.

To speak with a divorce attorney in Jupiter, Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

In a Modification of Child Custody & Visitation proceeding, Courts are required to keep in mind the fact that a parent has a constitutionally protected right to a meaningful relationship with his or her children and timesharing privileges should not be denied to either parent as long as the parent conducts himself or herself, while in the presence of the children, in a manner which will not adversely affect the children. In Fay v. Fay, the Florida Court of Appeal recently stated that in order for any restrictions or limitations on custody and visitation to be put into effect by the court, there must be there must be competent, substantial evidence in the record that these restrictions are in the best interests of the children before those restrictions will be sustained. It is the court’s responsibility to ensure that an appropriate relationship is maintained between parents and their children, and that responsibility cannot be abdicated to any parent or expert. The trial court cannot delegate its authority to another person to rule on the custody and visitation details. A parent’s visitation rights may not be conditioned on the payment of the parent’s financial obligations.

In Fay v. Fay, the Florida Court of Appeal went on to state that when a court exercises its discretion to reduce or eliminate custody or visitation, the court must set forth specific steps a parent Modification of Child Custody & Visitation must take to reestablish time-sharing in order to let the parent know what is expected of him or her. Courts have an obligation to identify concrete steps in the final judgment that the parent must take to reestablish time-sharing.

To speak with a divorce attorney in Jupiter, Florida contact Matthew Lane & Associates, P.A. at (561) 363-3400.

Contact Information