Posted by Nydia Streets of Streets Law in Florida Child Custody
The standard for modification of a Florida parenting plan is a substantial, material change in circumstances that was not contemplated at the time of entry of the parenting plan. The court must find that a modification is in the best interest of the child. Does this change have to be permanent to qualify for the modification standard? This was explored in the case P.D.V-G. v. B.A.V.-G., 2D20-1178 (Fla. 2d DCA May 7, 2021).
Three years after their divorce was finalized, the former husband filed a petition for modification of the parenting plan, alleging a substantial change in circumstances. Specifically he alleged the parties’ children had witnessed domestic violence between the former wife and her boyfriend, that the former wife was harassing him, and that the children were removed from the former wife’s care by the Department of Children and Families (DCF) based on domestic violence that occurred between her and her boyfriend. The general magistrate held a hearing on the former husband’s petition for modification and found that a substantial change in circumstances was present which warranted changing the parenting plan. Specifically, the magistrate based this on findings of the former wife’s behaviors, her relationship with her boyfriend, and the removal of the children from her care by DCF.
The former wife filed a motion for exceptions to the general magistrate’s report, and the trial court granted them, holding that because the removal of the children from the former wife’s care by DCF was temporary, this was not a permanent change that warranted modifying the parenting plan. The trial court then entered a final judgment denying the former husband’s petition for modification. The former husband appealed.
The appellate court held “The trial court erred in focusing on the fact that the removal of the children from the former wife's care had been temporary rather than on the overall nature of the change in circumstances as alleged by the former husband and found by the magistrate. Much of the change in circumstances alleged by the former husband and found by the magistrate relates to the domestic violence between the former wife and her boyfriend. Indeed, the law holds that ‘parents engaging in domestic violence in front of their children constitutes an unanticipated, material, and substantial change in circumstances supporting modification of a timesharing arrangement.’” (internal citations omitted).
The appellate court concluded “Accordingly, the evidence supported the magistrate's conclusion that while the removal of the children from the former wife during the dependency proceedings was temporary, a substantial change in circumstances had occurred based on the former wife's volatile relationship with her boyfriend, which continued beyond the conclusion of the dependency proceedings. Thus, the trial court erred as a matter of law in concluding that no substantial change in circumstances had occurred and in granting the former wife's exceptions to the magistrate's report on that basis.”
If you need help deciding if a petition for modification is appropriate in your case, schedule a consultation with a Miami child custody lawyer.