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It's The Law: Custody Changes Are Not Easy

Q: My spouse got custody of our children in our divorce. I have since remarried and am doing well financially. I think our children would be better off with me. How difficult is it to change custody in Florida?

A: Although the term “custody” is often used, true custody has not often been awarded by Florida courts in recent years. True custody includes right to make all parenting decisions. By statute, Florida has preferred shared parental responsibility, under which parents make joint decisions. Instead of custody, the home of one parent was designated as the primary residence for the children.

Recently, the pertinent statute was amended. Instead of primary residence, the court must now adopt a parenting plan. The plan must, at a minimum, describe in detail how the parents will share and be responsible for the daily tasks of upbringing; time a child will spend with each parent; designate who will be responsible for healthcare, schooling (including address to be used for school boundaries) and other activities; and the methods and technologies used for communication with the child.

Whether you are seeking to modify a parenting plan, an award of primary residence or actual custody, Florida courts will require a showing of substantial change in circumstances before altering the arrangements. If a substantial change in circumstances is shown, the primary consideration of the court if the best interest of the child, not the best interest of any parent or relative. Best interest of a child requires showing more than that the child will be better off. In our judicial circuit, it must be shown that maintaining the status quo would actually be detrimental to the child.

It is very difficult to prove a substantial change in circumstances. That means most efforts to change the custodial arrangement fail.

Courts have held that frequent moves, a less stable life style and even poor relationship choices standing alone will not support a modification of the custodial arrangement where the residential parent moved out of necessity, has established a stable home by time of court hearing and the child’s needs have always been met.

In the case of Jannotta v. Hess, the father was designated primary residential parent of four children due in large part to the mother’s alcohol abuse and related problems. Five years after divorce, the mother had overcome her alcohol abuse, had remarried and was financially better able to care for the children then the father. The father had moved and visitation was difficult. The father also allowed one of the children to live with the mother on a temporary basis, in the hope of improving the child’s low self-esteem stemming from her being overweight.

The trial court found the evidence sufficient to warrant a change in the custodial arrangement for the daughter temporarily with the mother. The appellate court reversed on three grounds. First, the appellate court confirmed that a voluntary temporary change in custody cannot be the basis for permanent modification because it would discourage parents from making temporary arrangements they feel are in a child’s best interest. Second, the court did not believe there was a sufficient substantial change in circumstances that would make it in the best interest of the children to change. Third, the mother only wanted to change custody of the child who had been living with her on a temporary basis, which would separate the child from her three siblings.

The difficult standard adopted by courts for change in custodial arrangements is not only to promote best interest of the child. It is also to discourage parents from re-litigating this emotional issue. In most other cases, once a decision is entered by a court it is final. Because such finality would not be good in all child custody cases, possibility of modify the decision in custody cases exist.

Because the criteria for change are difficult to meet, it is recommended that you retain an experienced attorney to review the facts and circumstances of your particular case. An experienced attorney will advise you as to the potential for success and, if you elect to proceed, present the evidence in a manner most conducive to your goal.

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