Posted by Nydia Streets of Streets Law in Florida Child Custody
Usually, when a parent wants to change a Florida parenting plan, the parent must show there has been a substantial and material change in circumstances. When is this showing not required? This was an issue in the case Perseo v. Donofrio, 4D2022-2706 (Fla. 4th DCA February 7, 2024).
In this case, the parties’ original parenting plan stated “March 1, 2019: The parties will revisit the timesharing schedule without prejudice. No Supplemental Petition for Modification needs to be filed by either party. If the parties are unable to agree on a schedule at that time after attending formal mediation, the matter shall be submitted to the Court.” The father filed a petition to modify the parenting plan after the parties were unable to agree on a schedule. In response, the mother moved for judgment on the pleadings, arguing the father waited too long to modify the parenting plan. The trial court granted the mother’s motion, effectively dismissing the father’s petition. The father appealed.
The appellate court reversed noting “In C.N. v. I.G.C., 316 So. 3d 287 (Fla. 2021), our supreme court acknowledged its recognition in Wade v. Hirschman, 903 So. 2d 928 (Fla. 2005), that the First District’s Mooney decision stands for the proposition that ‘[t]he substantial change test applies unless the judgment otherwise provides for the standard that should be applied when one party seeks a modification.’ C.N., 316 So. 3d at 292 n.5 (quoting Wade, 903 So. 2d at 932 n.9).”
The appellate court concluded “Thus, the trial court erroneously concluded that the parties’ existing parenting plan required him to meet the substantial, material, and unanticipated change in circumstances burden generally applicable in timesharing modification proceedings. We therefore reverse the judgment on the pleadings and remand for further proceedings consistent with this opinion.”
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