Posted by Nydia Streets of Streets Law in Florida Child Custody

In order to modify a Florida child custody order, a party must show there is a substantial change in circumstances which was not contemplated at the time the original order was entered. What constitutes a substantial change in circumstances? Changes that substantially impact a parent’s ability to follow the current parenting plan and/or affect the best interest of the parties’ children usually qualify as a substantial change. As with most issues in Florida family law, however, the answer relies on a case-by-case analysis. One such analysis is available in the recent appellate case Hollis v. Hollis, 2D18-2293 (Fla. 2d DCA June 19, 2019).

The parties were divorced by final judgment which included a parenting plan that established majority timesharing for the mother. Not long after the final judgment was entered, both the father and the mother filed their respective petitions for modification of the final judgment, claiming there was a substantial change in circumstances that warranted modifying the parenting plan. After a trial, the father was awarded majority timesharing with the parties’ children.

The mother appealed, arguing “that no evidence before the trial court established a material and substantial change in circumstances. She contends that the trial court relied solely on Former Husband's relocation some forty-seven miles away. In her view, this move, alone, does not constitute a substantial change. She further maintains that although the trial court's order uses the "magic words" that a substantial change occurred, the order fails to identify those changes. Former Husband counters that the trial court is not required to specify what substantial changes have occurred; rather, the order must only indicate that it found they exist. He alleges that his relocation was just one factor the trial court considered.”

The appellate court agreed with the mother, holding, “The trial court described various evidence, apart from relocation, adduced at the evidentiary hearing. Unfortunately, the trial court did not elaborate, orally or in its order, on how any bit of that evidence weighed for or against modification. Seemingly, the only obvious change in circumstance was Former Husband's relocation. Generally, however, ‘relocation does not amount to a substantial change if the relocation is not [distant] from the child's current location.’ [. . .] Here, the trial court expressed its concern that ‘[t]he children should not be in the car that long. [Forty-seven] miles each way. Not great.’ The trial court also elaborated on the section addressing "geographical viability of the parenting plan" more than most other sections of the modification order. However, the trial court observed that Former Husband ‘testified that new distance did not impact the minor children's routine" and that he "was still able to comply with the time-sharing schedule and provide the minor children with a consistent routine while they were in his care.’ We find the trial's court finding of a "substantial, material, unanticipated change of circumstance" is unsupported by the record.”

Because Florida child custody courts have less discretion in modifying a parenting plan than they do in establishing one, it is important to consult with a Miami child custody lawyer before filing your petition for modification. A consultation can help you determine the merits of your case and avoid potential waste of time and money.