You may agree your judgment will provide for a different burden for modification than the substantial change in circumstances test. Read more about that extraordinary burden here.
The Supreme Court of Florida noted a judgment could provide a different standard to be applied when a parent seeks to modify custody. See Wade v. Hirschman, 903 So. 2d 928, 932 n. 9 (Fla. 2005). Wade approvingly cites Mooney v. Mooney, 729 So. 2d 1015 (Fla. 1st DCA 1999) (parents agreed that the beginning of school would constitute a change in circumstances which would require custody to be readdressed) and Greene v. Suhor, 783 So. 2d 290 (Fla. 5th DCA 2001) (custody order provided that either parent could seek reconsideration of the custody issue when their child started kindergarten, without showing a change in circumstances).
In Greene, the dad did not have to meet the heavy substantial change in circumstances burden of proof. The modification proceeding should have proceeded as if it were an initial custody determination. The best interests of the child standard applies to initial determinations. The initial paternity final judgment directed the child would be with each parent alternating months until he started kindergarten. Then, the child’s primary residence would be with mom. The judge provided either party could seek reconsideration of custody when the son started school without showing a substantial change in circumstances.
Parents may agree in their parenting plan to revisit and modify timesharing after a certain date, without having to prove a substantial change in circumstances. That’s what happened, and the Florida Fourth District Court of Appeal upheld, in Perseo v. Donofrio, 379 So. 3d 1183 (Fla. 4th DCA 2024).
Their parenting plan expressly set forth a series of timesharing schedules. Over three years, and milestone events happening, dad’s timesharing with their child would increase. Neither parent would have to return to court for the agreed modified schedules to take effect. Regarding the last milestone date, the parenting plan said:
March 1, 2019: The parties will revisit the timesharing schedule without prejudice. No Supplemental Petition for Modification needs to be filed by either party. If the parties are unable to agree on a schedule at that time after attending formal mediation, the matter shall be submitted to the Court.
Perseo v. Donofrio, 379 So. 3d 1183 (Fla. 4th DCA 2024) (Emphasis added in the opinion).
Mom and dad couldn’t agree on modification after the last milestone happened. He moved for modification. The trial judge, however, entered judgment on the pleadings in mom’s favor. The judge held dad to the substantial change in circumstances test, denied his petition.
This, the appeals court held, was incorrect. The existing timesharing agreement, particularly the provision establishing the March 2019 milestone date, gave him the right to seek modification without proving the ordinarily required test for modification. In support, the court drew guidance from CN v. IGC, 316 So. 3d 287 (Fla. 2021), Wade v. Hirschman, 903 So. 2d 928 (Fla. 2005), Idelson v. Carmer, 330 So. 3d 81 (Fla. 2d DCA 2021) (discussed below), and Greene v. Suhor, 783 So. 2d 290 (Fla. 5th DCA 2001).
Other Florida cases have allowed some parents to seek modification without demonstrating a substantial change in circumstances.
A trial judge correctly modified a stipulated Parenting Plan, incorporated into a paternity judgment, governing parents’ timesharing for their three children. Idelson v. Carmer, 330 So. 3d 81 (Fla. 2d DCA 2021). The parents relationship was high conflict. The family court correctly observed that it need not decide whether a substantial unanticipated change in circumstances had occurred, to include a child in a parenting plan. The parents had agreed to incorporate the child into the parenting plan upon either parent’s filing a motion after the child’s 3rd birthday. That precipitating event occurred.
…[T]he provision is clear that the parties intended the family court to incorporate their youngest child into the parenting plan upon the filing of a motion and without the need to show that a substantial unanticipated change in circumstances had occurred.
Idelson v. Carmer, 330 So. 3d 81 (Fla. 2d DCA 2021).
But, for circumstances unrelated to precipitating event – the child’s turning 3 – that the parents had specified, the trial judge went too far. The court erred when it substantially modified their parenting plan without finding a substantial change in circumstances had occurred.
In Segarra v. Segarra, 947 So. 2d 543 (Fla. 3d DCA 2006), a dad was not required to demonstrate a substantial change in circumstances to modify visitation. The parents’ marital settlement agreement specifically contemplated revisiting visitation when a precipitating event occurred: their child’s beginning formal school.
See also Mooney v. Mooney, 729 So. 2d 1015 (Fla. 1st DCA 1999)(neither parent bore a higher burden of proof to show a substantial change in circumstances. The parents agreed at the time of divorce the beginning of the child’s school would be a change in circumstances requiring custody to be readdressed).
Compare cases in which final judgments failed to provide a different standard than the substantial change in circumstances for modification. For example, in Martinez v. Kurt, 9 So. 3d 54 (Fla. 3d DCA 2009), the parents’ settlement agreement was incorporated into final judgment of dissolution of marriage. The agreement provided for schooling for their children if mom wished to relocate to Turkey. The parents would have to agree to a full-time English-speaking school in Turkey. Neither parent could unreasonably withhold consent to the school selected after they discussed school information mom would provide to dad. Both parents would meet with school personnel. They would attempt to decide jointly for the best interest of their children. If that was unsuccessful, they would go to arbitration.
The Third District Court of Appeal agreed with dad, who argued the trial court impermissibly modified the final judgment of dissolution of marriage. It did so by letting mom enroll the kids in a Turkish-speaking (rather than English-speaking) private school, absent finding a substantial change in circumstances had occurred and competent substantial evidence to support such a change.
The parents had specifically addressed the children’s private school attendance in the settlement agreement. The trial court had considered and ratified the agreement and incorporated it into the final judgment. Therefore, the alleged changes did not occur post-judgment and were not “unanticipated.” The final judgment provided no standard for modification other than the substantial change in circumstances test.
Even when parents have exercised their contract power to agree to a different burden for modification, judges must safeguard children. So it was in Alaska, which has a substantial change in circumstances test similar to Florida’s test.
In JM v. SC, Case No. S-18650, No. 7707 (Alaska July 19, 2024), The highest court in Alaska acknowledged parents had agreed in their settlement agreement to a different burden of proof for modification than the substantial change in circumstances test. But the trial judge decided to apply the substantial change in circumstances test and conduct a “best interest” analysis. The Alaska Supreme Court affirmed the decision, rather than defer to the parents’ agreed-upon burden for modification.
The parents – two doctors – reached a custody agreement after participating in the Collaborative Divorce process. They agreed:
Regarding modification, they further agreed: “Any attempt by either parent to modify the terms of this agreement with respect to [the child’s] relocation to New Jersey should be rejected absent” unanticipated circumstances “detrimental” to the child.
The Alaska Supreme Court discussed how Alaska favors settlement agreements. But the parents couldn’t avoid law that judges have an independent duty to safeguard children in custody modification, including relocation, actions.
The Supreme Court of Alaska agreed custody settlement agreements should be enforced absent extraordinary circumstances…”up to a point.”
The legislature and the courts recognize a preference for respecting custody agreements that are in a child’s best interests, both because they reflect effective cooperation between the parents and because they likely reduce the need for litigation that consumes judicial resources and is financially and emotionally draining for the parties. But the preference applies only to the extent that the agreements reflect — and continue to reflect — a child’s best interests. While courts “may engage in a `less searching’ inquiry” when confronted with a custody agreement, the agreement’s terms do not control if “the child’s best interests justify a deviation.”
[citations omitted; emphasis added]And when it comes to the best interests of a child in divorce, “[t]rial courts, not parents, are the ultimate decision makers as to custody and are not bound by private agreements.” “The court must independently determine what arrangement will best serve the child’s interests.” Thus, “when a court recognizes or gives attention to an agreement, it does so not because the parties’ compact binds the court, but for the light it sheds on the motives and dispositions of the parties.” In this case, therefore, to the extent that the superior court independently evaluated the best interests of the child regardless of the parties’ stipulations, it did not err. Amicably-reached custody agreements are to be encouraged, but a court presented with a custody dispute must nonetheless undertake its own full and independent best-interests analysis.
When mom and dad entered into the custody agreement, their son showed signs of undiagnosed attention deficit/hyperactivity disorder. Evidence dad presented at a 10-day trial on modification, in opposition to mom’s request to relocate with the child from Alaska to New Jersey, showed the child’s condition did not manifest into the severe emotional disturbances he couldn’t control until several years later, and relocation would not be in the child’s best interests.
Mom unsuccessfully argued dad couldn’t meet the contractual condition for dad to show relocation to New Jersey would be “detrimental,” because mom could satisfactorily address the son’s behavioral issues in New Jersey if the Alaska judge granted relocation. According to the Alaska Supreme Court:
The court was not obliged to follow the parties’ contractual standard if it determined that the child’s best interests required something else, as explained above. But in any event, the contractual and legal standards do not appear to be meaningfully different, at least in the context of the findings in this case.
Might the outcome in Martinez v. Kurt may have been different under amended 61.13(3), Florida Statutes?
Under amended parenting plan and timesharing law, a parent seeking modification no longer has to prove that a substantial change in circumstances for modification was unanticipated. See CS/HB 1301, amending section 61.13(3), Florida Statutes. Laws of Florida, Ch. 2023-301.
Effective July 1, 2023, the required elements for modification of a parenting or time-sharing schedule are:
