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It's The Law: Child Custody Modification Requires Material Change In Circumstances

Q: I am divorced and my children live most of the time with my ex-spouse. I think they would do a lot better living with me so I am considering asking the court to change their living arrangement. What are my chances?

A: Florida's divorce laws were recently amended so that courts now create parenting plans rather than custody or primary physical residence for children. Despite this change, it is likely that courts will continue to look to the same standard for changing custody or a parenting plan defining the amount of time children stay with each parent.

Florida courts require a material change in circumstances to justify modification of child custody. The proposed change must also be in the best interest of the child. That standard limits protracted litigation in this area and also means minor changes or hope for improvement in circumstances by changing custody will not be enough. For example, many cases have held continued bickering of parents or their failure to properly communicate do not constitute a material change in circumstances warranting modification of custody. However, one recent decision did find sufficient change.

The case of San Marco v. San Marco, is an example of the court finding sufficient grounds to change the living arrangements the mother filed a supplemental petition to modification custody after the divorce decree was entered. In San Marco, the mother had primary residence, decisions about the child were shared and the mother could relocate without court permission as long as she stayed in Dade, Broward or Palm Beach County.

The mother filed a petition to modify custody in which she alleged that the father was not following the visitation schedule by failing to bring the child home at the arranged times and that this caused the child to miss school. The mother asked the court to limit the father's visitation rights to every other weekend.

The father responded by filing a counter petition to modify visitation he claimed the mother had breached the judgment by failing to provide the child with medical care and attention, failing to have the child vaccinated, failing to provide the father with her correct address and moving repeatedly since the parties divorce. The father claimed there was a substantial change in circumstances, including his remarriage, and requested primary residence of the child be with him.

At trial, the mother admitted to moving 6 times in 4 years, but claimed those moves were in the best interest of the child as she was forced to move due to financial difficulties. The father testified he picked the child up on several occasions and due to problems such as an ear infection or pink eye had to take the child directly to a doctor's office. The father also testified that his neighborhood and home were better and that either he or his wife would be home when the child came home from school. The child was starting kindergarten and the father argued that the child would have to go to day care if living with the mother.

A nurse testified that the child missed her measles, mumps and rubella along with chicken pox and pneumococcal vaccines. The expert also testified that the child's multiple ear infections and contraction of chicken pox could be traced to the lack of vaccination.

After hearing the evidence, the court found that the father had taken the child to the doctor or dentist on more than 10 occasions while the mother had taken her once; that the mother had not provided the child with appropriate medical care by refusing to have her vaccinated; that there was more structure in the father's home and that the child would have her own room and bathroom in the father's home; that the child would not have to be in day care following school if she lived with the father; that due to the mother's frequent moves, the child would have a more stable school environment by living with the father; that the father had a superior capacity and disposition to provide the child with medical care. The trial court determined this was a substantial material change of circumstances and it was in the child's best interest to reside with the father.

The mother appealed. The appellate court noted that a trial judge's order modifying custody was a presumption of correctness and will not be disturbed absent a showing of abuse of discretion. The appellate court found no abuse of discretion and the change in primary residence was affirmed.

As you can see from the San Marco case, evidence presented to the trial court is critical. A parent wishing to change the residence arrangement under a divorce decree has a heavy burden. In these cases, it is essential to retain a good attorney and possibly even experts for testimony as to living conditions, medical care and the like when pursuing a change.

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