Modification of Custody and Timesharing

After a divorce or paternity case, a party may determine that it is necessary or desirable to modify custody and/or timesharing. Effective October 1, 2008, custody was eliminated from the statute, as were designation of primary and secondary residential parents, and references to timesharing. So practically speaking, there are no longer "custody battles", but instead parents now contest the amount of timesharing, and the associated topics contained in a parenting plan.

Florida courts generally award shared responsibility and some division of timesharing. There is no presumption under current law that the parties must share equally timesharing. There are two main circumstances in which a modification of parental responsibility is sought:

• The child's needs for the parents lifestyles or circumstances have changed
• the previous parenting plan or timesharing schedule has failed.

Modification may be sought to change timesharing arrangements or areas of decision-making responsibility.

Proceedings regarding parental responsibility or timesharing are continuing in nature and the courts possess continuing jurisdiction to effectuate a plan that will best serve the welfare of the child and the rights of parents. The court has the inherent ability to change that plan for the best interest of the child. However, a parent seeking to modify order regarding parental responsibility and timesharing carries an extraordinary burden. In order for a court to modify parental responsibility a parent must file a petition for modification and must allege and prove a substantial change in circumstances. The substantial change test requires that both the circumstances have substantially, materially changed since the original or most recent custody determination and that the child's best interest justify modify parental responsibility. Furthermore, the substantial change must be one that was not reasonably contemplated at the time of the original judgment.

The requirement to show a substantial change in circumstances applies to of modification after a decree adopted by the court pursuant to an agreement as well as those established after an adversarial hearing. A determination as to what constitutes a substantial change in circumstances is determined by the facts of each case. The court is guided by previous appellate decisions which assist the court in exercising its discretion. A major change in a person's life may not be viewed by the court as a substantial change in circumstances. When a person remarries, it is certainly a significant change in appearance life, but it may not constitute a substantial change sufficient to support a modification. The fact that parents do not get along with each other does not, alone, constitute a change in circumstances that justifies modification. However, in one case, where the parents cannot agree on which school the child should attend was considered sufficient for modification and the court granted the mother ultimate responsibility over educational decisions.

Florida statute section 61.13 (3) provides that, for the purpose of establishing or modifying parental responsibility…, The best interest of the child shall be the primary consideration. When considering the best interest of the child the court is required. Review all the factors in Florida statute section 61.13 (3). When either parent refuses to honor the timesharing schedule the other parent may seek modification of the timesharing schedule and parenting plan. The courts remedies include makeup timesharing for the parent whose timesharing was refused.

The law offices of West Palm Beach divorce and family law attorney, Jessica Mishali handles all forms of divorce and family law cases including modification of parental responsibility and timesharing. We will aggressively handle your case and always strive to protect your rights with professional excellence. Please contact the law offices of, Jessica Mishali at (561)  833-2772 for a consultation or contact us online.