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.
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.
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.
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 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.
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 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 a modification of child custody & visitation proceeding, there is no requirement that the change in circumstances be involuntary in order to modify time-sharing. In Wilks v. Cronin the Florida Court of Appeal recently stated: "The former husband, Brian Wilks, appeals the Order Granting Former Wife's Motion To Dismiss rendered following an evidentiary hearing.
In order to modify custody there must be an unanticipated, substantial and material change in circumstances, it must be in the child's best interests, and the trial court should consider the 61.13 factors. In Straney v. Floethe, the Florida Court of Appeal stated...