Time-Sharing Modifications: Proving a Substantial Change in Circumstances is a High Burden to Overcome

Upon final judgment regarding dissolution of marriage, either the parents agreed, or the court determined, the child’s time-sharing plan. But what happens when some time passes since the initial time-sharing plan and the other parent now believes there has been change(s) in his or her circumstances and he or she is now in a better position to care better for the child or have the child more frequently? If the other parent does not agree, the parent seeking the change must file a ‘Petition for Modification of Time-Sharing’. In this action, the court no longer considers just the best interests of the child as the primary aspect when assessing whether to modify the time-sharing plan.

Modification of a parenting plan and time-sharing determination requires the petitioner to show a “substantial, material, and unanticipated change in circumstances” and establish that the modification will be in the best interests of the child. See § 61.13(2)(c), Florida Statues (2018); § 61.13(3), Florida Statutes (2018). This statutory standard for modification is essentially the same as the “substantial-change test” mandated by the Florida Supreme Court in Wade v. Hirschman, 903 So. 2d 928 (Fla. 2005). (petitioner for modification of a final judgment determining custody had the burden to show that (1) the circumstances have substantially and materially changed since the custody determination and (2) the child’s best interests justify the change). The substantial change must be of a permanent or near-permanent nature that could not have been reasonably contemplated by the parties or the court at the time the original parenting plan was ordered.

Based on the modification requirements, it is quite a challenge to overcome the
court’s initial time-sharing order. You might think, for example, a court might find re-marriage and establishment of a more stable home or improved financial condition of a parent are sufficient changes in circumstances to grant modification. However, Florida courts have consistently held that these are not sufficient changes. Some further examples where Florida courts determined there was NOT enough compelling evidence for a substantial change in circumstances include: the primary parent’s prior acquiescence in the other parent consistently having extra timesharing with the child(ren), parent’s relocation, or parents’ inability to communicate with each other.

Some instances where Florida courts have granted modification of the time-sharing plan include: when the primary parent has alienated the other parent, in addition to contempt and ongoing violations of shared parental responsibility or re-marriage of the primary parent to a sex offender. Some examples where a court could likely find substantial change in circumstances include: the primary parent developing an addiction problem, physical or mental abuse by the primary parent, improper care of the child’s health by the primary parent, grades of the child suffering under the care of the primary parent, or if the parents’ previously included certain circumstances in the original time-sharing plan where the parents’ agree to be substantial change in circumstances.

The above examples of what courts consider and do not consider sufficient to justify a modification action are not comprehensive nor formulaic since every case has different facts and circumstances. Due to the complex nature of such actions, it is important to contact a qualified and experienced family law attorney to advocate your rights. At Thomas-McDonald Law, we have successfully prevailed at trial in overcoming the high burden of proving a substantial change and showing the modification of the time-sharing plan would promote the child’s best interests. Contact us at 305-928-6999 or 904-674-3384 to schedule a free 30-minute consultation with attorney Aislynn Thomas-McDonald to evaluate your life changes for your modification action.

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