Law Offices of Ellis and Bryant, P.A.

Child Custody Modification

Your divorce may have been years ago, but when it comes to your children, changes to child support, custody arrangements, visitation, decision making powers, or even changes to where you live can still be made by the Court. Either parent may seek to change the terms of the original child custody agreement at any time by filing a petition with the court. However, the party seeking modification must show that (1) there has been a substantial, material and unanticipated change in circumstances and (2) that the change is in the best interest of the child or children. Modification of time sharing or visitation and parental rights is governed by Florida Statute 61.13(2)(c) and modification of child support is governed by Florida Statute 61.13(1)(a)2.

Substantial, Material and Unanticipated change of circumstances:

The court must find a substantial, material and unanticipated change of circumstances before a change to child custody can be made. But what exactly is a substantial, material and unanticipated change? For changes to child support payments a 15% or $50 increase or decrease in child support guidelines is by statute a substantial, material, and unanticipated change. However, a voluntary decrease in pay will not justify a reduction in child support. If you are owed child support and the payor is self-employed or can otherwise adjust his or her income level and does so in an effort to reduce his or her child support obligation, you should contact an attorney immediately. In some cases, the court may impute income or hold that he or she could and should be earning at the higher level and thus he or she will still be required to pay the higher child support amount. For more information see our article on imputed income or call 904-551-4120 to schedule a free initial consultation with one of the attorneys at Ellis and Bryant, P.A.

But what constitutes a substantial, material and unanticipated change for time-sharing, visitation, custody, relocation, or other modification to child custody? This is a much harder question to answer. It is helpful to start with what is not. If a party seeks modification solely for one of the following reasons you should consult with an attorney about filing a motion to dismiss the request as this may be able to stop the court proceedings without further expensive and time consuming litigation.

  1. The alleged change has been addressed in a previous order of the court or took place prior to the most recent order of the court. If the change took place before the most recent order of the court, it may be considered Res Judicata and thus barred from further litigation.
  2. Either or both parents have moved. The mere fact that either parent has changed residences is not by itself sufficient to justify modification.
  3. Either party has had a voluntary increase or decrease in time spent with the minor children. The fact that you let the other parent have a few extra over nights with the children is not sufficient to make the changes permanent. However significant and sustained changes to timesharing can become a basis for a permanent modification. If you plan to allow more than just a few extra over nights a year you should consult with an attorney.
  4. You can’t pay your child support. Though this would be a basis for modifying child support, you cannot be kept from time with your children just because you are temporarily unable to pay your support.
  5. Exactly what is or is not a substantial, material and unanticipated change in circumstances depends on the totality of the circumstances and requires a detailed legal analysis of your specific and unique situation. For more information on whether your situation qualifies call 904-551-4120 to schedule a free consultation.
Best Interest of the Children:

If the Court finds that there has been a substantial, material and unanticipated change in circumstances, the Court must still decide if the requested modification is in the best interest of the minor child or children. Florida Statute 61.13(3)(a)-(t) lists 20 specific factors the Court must consider when determining if a change is in the best interest of the children. The final factor listed is “Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.” So the Court may consider anything relevant to the best interest of the child even if it is not specifically listed in the Statute. One factor that Court’s take very seriously is “the demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required.” In other words, your ability to work with the other party and encourage your child to have a close relationship with the other parent. If the other parent is alienating, you from your child or interfering with your rights as a parent that will weigh heavily in your favor at future proceedings. And it is very important that you do nothing to appear to the Judge as if you are alienating the other parent. For a complete analysis of how the best interest factors might apply to your case contact the attorneys at Ellis and Bryant, P.A. for a free consultation at 904-551-4120.