What is formerly known as “custody” is currently referred to as “time sharing” in Florida Statutes. When parties in a dissolution of marriage case have a minor child in common, there is a need to establish parental responsibility for the minor child. The parties will strive to agree on a parenting plan, including a a time-sharing schedule, which governs each parent’s relationship with his or her minor child.

For purposes of establishing parental responsibility and creating, developing, or approving a parenting plan, the court must decide all such matters in accordance with the best interests of the child. However, it is important to note that any modification to a determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances in addition to a determination that the modification is in the best interests of the child.

What may seem as an emergency to you that warrants a modification of an existing time-sharing schedule may not persuade the judge if he or she does not consider it a substantial change in circumstances. For example, in a recent opinion by the First District Court of Appeals, the former husband and wife had time-sharing of their minor child, when the former husband sought to modify it on an emergency basis because his cancer was no longer in remission and his health was deteriorating. The trial court granted the former husband’s motion and modified, on a temporary basis, the final order establishing time-sharing, notwithstanding the fact that the basis supporting the modification was not unanticipated and the court had taken into consideration the former husband’s health when it first issued the final order.

The 1^st DCA overruled the trial court’s decision on this point, holding:

“in order to obtain a temporary modification of custody, the moving party must establish (1) that there has been a substantial change in the condition of one or both parties, and (2) that the change in custody serves the best interests of the child … Furthermore, the substantial change must be one that was not reasonably contemplated at the time of the original judgment.”

Here, because the trial court acknowledged that it had taken the former husband’s health into consideration when it issued the final order, it was without power to grant a modification of such order.

Dissolution of marriage can be an emotional process, especially when children are involved. You want to ensure that you secure the best possible outcome for you and your children. That is why it is important to seek the advice of counsel from the inception of your dissolution of marriage case. If you currently have time-sharing of your minor child or children and are experiencing a change in circumstances that you feel warrants a modification of your existing order, make sure you speak to an attorney so that you are adequately prepared to meet your burden of proof to get a modification granted.

See Langdon v. Langdon, 37 Fla. L. Weekly D2061 (Fla. 1^st DCA 2012).

Liridona Sinani is an Attorney with Martin Law Firm, P.L., whose practice focuses primarily in Family Law.  She is admitted to practice law in the State of Florida. She primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.

Time-sharing is a very delicate subject and obviously of the utmost importance to both parents and the child.  It is very important that attorneys, judges, and the parties take this subject very seriously.  Florida law places the priority on the “best interests” of the child.  Specifically,

The best interests of the child are always the paramount concern in child custody and time-sharing matter.”

For this reason when one parent refuses to comply with time-sharing, while the aggrieved parent’s interest will absolutely be a consideration, the best interests of the child will still be the priority. Thus the Court must always make findings that their orders are in the best interest of the children.

However, there are several sanctions the Court can impose.  First the Court can always order the offending party to pay the other spouse’s attorney’s fees and costs in enforcing the time-sharing.  Second, the Court may

after calculating the amount of time-sharing improperly denied, award the parent denied time a sufficient amount of extra time-sharing to compensate for the time-sharing missed, and such time-sharing shall be ordered as expeditiously as possible in a manner consistent with the best interest of the child and schedule such tune-sharing in a manner that is convenient for the parent deprived of time-sharing.”

This remedy requires the careful balancing of awarding necessary make up time-sharing while doing so in a manner which is in the best interests of the child.  For example, it may be inappropriate for the Court to order an immediate full custody change in the middle of the school year.  However, if it is in the best interest of the child, this is a remedy which the Court may impose.

Finally the Court can find criminal contempt and impose a sanction of incarceration.  In a recent case the Court ordered five (5) days incarceration for the willful disregard for the Court’s time-sharing order.

Even in an unpleasant divorce it is crucial that both parents maintain the goal of achieving what is in the best interest of their child. 

See, Cheek v. Hesik, 36 Fla. L. Weekly D2378 (Fla. 1st DCA 2011).

Dustin Michael Butler is an Attorney with Martin Law Firm, P.L., whose practice focuses in Family Law and Civil Litigation.  He is admitted to practice law in the State of Florida and the Federal Court for the Middle District of Florida. He primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.

Question: My wife and I have been divorced for over five years. My wife has full custody of our two children. How do I go about changing the custody arrangement to get full custody of my children myself?

Answer: It is possible to change the final judgment of dissolution of marriage after it has been entered. The process is called “modification of final judgment.” A parent who is trying to modify an award of parental responsibility/custody carries a hard burden. To modify custody, the party needs to prove:

1. a substantial or material change in the parties’ circumstances since the entry of the most recent custody order, unknown to the court at the time of the original order, and
2. that modification is in the best interest of the child.

What constitutes a substantial change in circumstances depends on the specific facts of every case and differs from family to family.

The fact that the parents do not get along with each other, absent other factors, does not constitute a basis for custody modification.

In a modification of custody, the court must also determine that the change in custody is in the best interest of the child. There are several factors considered by the court in making this determination: preference of the child, with some exceptions; which parent is more likely to allow the child frequent and continuing contact with the nonresidential parent; ties existing between the parents and the child; the ability of the parent to provide the child with food, clothing, and other material needs; the home, school, and community record of the child; evidence that any party has knowingly provided false information to the court regarding a domestic violence proceeding; and evidence of domestic violence or child abuse.

The court also looks at the stability of the child’s environment and the desirability of maintaining that stability. The moral fitness of the parent plays a role in the determination if the behavior of the parent causes a detriment to the child. For example if a parent’s lifestyle has become chaotic and is adversely affecting the child, causing emotional distress, modification may be an appropriate course of action.

In the past, the courts were guided by the “tender years doctrine” meaning that the mother of the child was presumed to be the parent best able to care for the children. Times have changed, and the courts now believe that the father is an equally important figure in the child’s life who is equally able to take care of the child. Now the father of the child is given the same consideration as the mother in determining the custody of the child.

Today, the phrase “Child Custody” can have many meanings in the context of an action for dissolution of marriage. There are several areas of responsibility divorcing parents must face when determining their future relationships with their children.

Shared Parental Responsibility is a term that means that both parents share parental rights and responsibilities ~ each contributing their input on important decisions in the child’s life after the divorce. Joint decisions can be made on such determinations as where the child attends school and church, and what medical treatments he or she receives. Both parents have equal access to the child’s medical and school records. The judge frequently awards parental responsibility to be shared unless this arrangement will be detrimental to the child. In cases where shared parental responsibility will be detrimental to the child, one parent will be awarded sole custody of the child. This situation, however, is quite rare.

Primary Physical Residence defines where the child physically lives. When deciding custody issues, the judge considers what arrangement will be in the child’s best interest. Numerous factors help guide the judge’s decision, for example, which parent is most likely to allow frequent contact with the other parent, the moral fitness of each parent, the length of time the child lived with one parent, and the love and affection existing between the child and the parent. There is no presumption in favor of either the mother or the father in determining which parent will be the primary residential parent.

Split Custody, in which two or more siblings are divided among both of the parents, is strongly disfavored and rarely awarded. Similarly, Rotating Custody, when each parent spends an equal amount of time with the child, is seldom awarded and only if it is in the best interest of the child.

Frequently, both parents will request to be the primary physical parent. In that case, a judge may appoint a Guardian Ad Litem or a Parenting Coordinator who helps the judge to decide who is a better fit parent. They talk to the parents and to the child(ren), observe the family environment and make their recommendation to the judge.

Visitation establishes the right of the nonresidential parent to spend time with the child. It is public policy in Florida and many other states that both parents be afforded frequent and continuing contact. Any changes to the visitation agreement must be approved through the court, for example, the mother cannot refuse the father’s visitation because he fails to pay child support. At the same time the father cannot stop paying child support because the mother refuses to allow him visitation. Unfortunately, visitation rights are a frequent source of dispute between parents.