If you are seeking a court order to modify time-sharing or custody determination provisions set forth in your mediated settlement agreement, you must prove to the court either that (1) there are facts concerning the welfare of the child that the court did not know at the time that it entered its original order or (2) that there has been a substantial change in circumstances. If you are relying on the second test, you must not only show that the circumstances substantially and materially changed since the original order but also that the requested change in time sharing or custody determination is in the best interests of the child. Your burden of proof is to provide competent substantial evidence in support of your position.
In a recent case decided by the Third District Court of Appeal (3rd DCA), the husband and wife had entered into a mediated agreement whereby the parties agreed to have shared parental responsibility of their minor children and the mother’s residence was designated as the primary residence for the children. About five years after the court entered its final judgment adopting the mediated agreement, the father sought to change the final judgment, particularly the provisions relating to time-sharing and primary residence of the minor children. The father’s arguments for substantial change in circumstances were “parental alienation” by the mother. The crux of the father’s argument was that the older child, as allowed by the mother, had such control over the younger siblings that it detrimentally interfered with the father’s relationship with the younger children.
Relying on the testimony of a clinical psychologist, the trial court held that the father’s allegations of “parental alienation” were “confirmed by [the psychologist].” Due to this, the trial court ordered that the younger children immediately be transferred to the father’s residence and awarded sole parental responsibility of the younger children to the father. The 3rd DCA did not find this ruling to be supported by competent substantial evidence. Upon its own review of the psychologist’s testimony, the 3rd DCA found that that although the older child made every attempt to impair the younger siblings’ relationship with their father, the mother would in fact encourage a relationship between the children and the father. Additionally, the 3rd DCA did not find that the immediate transition of the younger children’s residence from the mother to the father, as ordered by the trial court, was in the best interests of the minor children.
Therefore, it is important to keep in mind that if you are seeking a post-judgment modification of a time-sharing or custody provision in a mediated agreement, you must not only prove a substantial change in circumstances, but also that the requested relief is in the best interest of the child(ren).
For more information, see Sueiro v. Gallardo, 38 Fla. L. Weekly D63 (Fla. 3rd 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.
The Second District Appeals Court recently heard a case wherein a mother appealed the trial court’s decision establishing paternity of the minor child, ordering shared parental responsibility, and awarding the father majority time-sharing in Pennsylvania, when the mother lived in Florida. The Appeals Court upheld the trial court’s decision, but explained that the mother’s petition for shared parental responsibility and majority time-sharing, and the court’s subsequent ruling, was not subject to the relocation factors set forth in section 61.13001(7)(a)-(k).
The trial court ruled that the statute did not apply because the statutory definition of relocation excluded the situation faced by the mother and father from the requirements of the relocation statute, since the father was not relocating, but already lived in Pennsylvania, where both parties had lived previously.
Relocation is a substantial issue in many divorce cases, especially now that communication and travel options are more readily available to families. Changes in the relocation statute in 2009 take note of this fact, and create additional factors for courts to consider when making rulings on this issue.
See A.F. v. R.P.B., 36 Fla. L. Weekly D2228.
Patricia Dills is an Attorney with Martin Law Firm, P.L., whose practice
focuses in Divorce, Child Support, Family Law, and Civil Litigation. She
primarily practices in Naples, Collier County, and Fort Myers, Lee County Florida.
Question: My ex-husband and I have been divorced for some time. I have full custody of our daughter. My ex-husband does not express any interest in our child’s life and very rarely visits her.
My parents live up north and I was wondering if I can move to Chicago with my daughter to live closer to my family.
Answer: If you move more than 50 miles from your current residence it raises a question of relocation. The Florida Statute defines relocation as a change in the principal residence of a child for a period of 60 consecutive days or more, which does not include temporary absences for vacation, education, or the provision of health care for the child. In your case you have several options:
Option #1: If you and your ex-husband still communicate on some level, and he does not mind if you and your daughter move, you can enter into a written relocation agreement with your ex-husband. The agreement will need to state that he does not object to your move, and must describe what visitation schedule and transportation arrangements you and he have agreed upon. Then the agreement will need to be ratified by the court.
Option #2: If you and your ex-husband do not communicate, you still need to notify him, and every other person who is entitled to visitation with your daughter, about your intention to relocate with the child. There are certain requirements and specific information that need to be included in the notice. For example, among other things, you will need to let your ex-husband know your new address, phone number, the date when you plan to relocate, and the reasons for your relocation. If at that point you do not have a new address where you plan to live, or if your new address will ever change later on, you will need to notify your ex-husband about your current location as soon as you will know it. You also will need to establish a new visitation schedule for your ex-husband and means of achieving it, including the necessary transportation arrangements. Additionally, in your notice you will need to include specific information advising your ex-husband about his right to object to your relocation. If he does object to your relocation, you will need to have a court hearing and prove to the judge why the relocation would be in the best interest of your daughter. In his objection, your ex-husband will need to state specific reasons for his objection, including the explanation and the amount of his involvement in your child’s life.
To determine whether the relocation is in the best interest of your child, the court might consider such factors as your and your ex-husband’s relationship with the child, the age and specific needs of your child, the likelihood of preserving the relationship between your ex-husband and the child, your child’s preference, your and your ex-husband’s economic circumstances, and a history of substance abuse or domestic violence in your family. For example, if you are trying to relocate because you got an excellent job offer that you cannot refuse, or if you are moving into the area where you have a lot of relatives and family members, both of which will enhance your and your child’s quality of life, your ex-husband, who has not been involved in your child’s life, will probably have a difficult time trying to prove that the relocation would not be in your child’s best interest.