Posted by Nydia Streets of Streets Law in Florida Child Custody

Modification of a Florida parenting plan requires the parent seeking modification to show “(1) circumstances have substantially and materially changed since the original time-sharing determination, (2) the change was not reasonably contemplated by the parties, and (3) the child’s best interests justify changing the time-sharing plan.” Lyles v. Guffey, 305 So. 3d 839, 840 (Fla. 1st DCA 2020) (citing Garcia v. Guiles, 254 So. 3d 637, 640 (Fla. 1st DCA 2018)). Modification of a parenting plan was an issue in the case Heath v. Lee, 1D2022-2963 (Fla. 1st DCA October 25, 2023).

The parties entered a long distance parenting plan in their original child custody action. The settlement agreement gave the mother time-sharing during the school year and the father during school breaks. The plan also allowed for liberal communication between the child and the parents which was not allowed to be monitored by nor interrupted by the other parent. The father filed a petition for modification five years later based on his relocation to Florida, the mother’s violation of the agreement and interference with his relationship with the child, as well as the effect on the child’s mental state.

The mother moved for partial summary judgement on the modification claim and did not submit any evidence. The father filed an affidavit in opposition to the summary judgment which detailed his move to Florida, new job and increased availability for time-sharing. The affidavit also contained allegations the describing “an escalation in the Mother’s acrimony toward Father. The affidavit also delved into Mother’s alleged interference with Father’s contact with the child. Father alleged Mother had degraded and minimized Father’s contact time by failing to allow Father to have private conversations with the child and limiting the time of conversations by removing the child’s phone. These restrictions on communication resulted in a substantial difference in the child’s behavior, with the child exhibiting anxiety, dysfunction, and emotional withdrawal.” The trial court granted summary judgment, reasoning the only factor the court could consider that was raised by the father in deciding whether or not to modify was the relocation, But it held prior decisions of the appellate court prohibited modification on this ground. The father appealed.

The appellate court noted “Earlier cases have addressed a parent’s relocation. Under the statutory language in effect when Father filed (and the trial court considered) the modification request, this Court had concluded that, by itself, a parent’s mere relocation was not enough to constitute a ‘substantial and material change.’” The court also noted parental acrimony alone will not be enough to constitute a substantial change in circumstances.

The court concluded, “That said, Father’s claim of a substantial change in circumstances did not rest solely on his relocation or mere parental acrimony. Rather, in detail, he alleged multiple factors, some specifically named in the statute as legitimate considerations. Father’s petition and affidavit detailed his change in employment, which resulted in his relocation to Florida and a new work schedule that allowed more time for parenting the child. Also alleged were escalating levels of acrimony on the part of the Mother and her interference with the communication and contact time between Father and the child (a violation of the settlement agreement). All of this reportedly had a mental and physical effect on the child in the form of anxiety, dysfunction, and emotional withdrawal. Contrary to the trial court’s conclusion, these alleged factors, in totality, could constitute legally sufficient grounds to modify the timesharing agreement.”

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