Posted by Nydia Streets of Streets Law in Florida Child Custody
Once a Florida parenting plan is established, a court cannot modify it without a party pleading a substantial change in circumstances. This was an issue in the case Bazinet v. Pinkerton, 5D2025-0058 (Fla. 5th DCA December 19, 2025).
The parties were originally before the court on a paternity action. A final judgment was entered which granted equal time-sharing and specified guidelines for the child’s school enrollment. Subsequently, the mother filed a motion for contempt, alleging the father unilaterally enrolled the child in virtual school. She requested that the child instead be enrolled in another school. After a hearing on the motion, the trial court ordered the child to be enrolled in a school not requested by the mother in her motion, and granted the mother all overnights preceding a school night. The father appealed.
The appellate court noted “When a final judgment determines issues concerning the care of the child, including school choice, the trial court cannot change or modify the school designation without applying the ‘substantial change’ test set forth in Wade v. Hirschman, 903 So. 2d 928, 933−34 (Fla. 2005). [. . .] To satisfy the substantial change test, the petitioner must plead and show both that the circumstances have substantially, materially changed since the original judgment was entered and that the child’s best interests justify modifying the judgment. [internal citation omitted]. Thus, without a properly pled modification petition, it is error to enter a modification order.”
The appellate court reversed, holding “In this matter, the trial court modified the Final Judgment without providing the Father due process. The Mother’s motion did not request a change to either the school designation or the timesharing plan established in the Final Judgment. However, the trial court’s order modified both. Specifically, the trial court changed the school designation without request and, additionally, its order had the potential effect of eliminating the Father’s overnight visitation on school nights, thereby modifying the existing timesharing plan. By granting relief not sought by either party and failing to place the Father on proper notice, the trial court’s order constituted an improper modification of the Final Judgment and a deprivation of the Father’s right to due process. Furthermore, the Mother’s motion was improperly pled for the purpose of modifying the Final Judgment. The Mother failed to plead the requisite substantial change in circumstances or that the modification would be in the best interests of the child. Accordingly, the trial court lacked a properly pled petition for modification to justify consideration of these changes. In addition, the trial court’s order does not make a finding that there was a substantial change in circumstances warranting a modification of either the change in school designation or the timesharing agreement. We acknowledge that the trial court mentioned that it found these modifications to be in the best interest of the child. Even so, the trial court must first determine that a substantial change in circumstances warrants modification before considering the best interest of the child.”
This article is not legal advice. Schedule your meeting with a Miami family law attorney to discuss your case.