Can Custody Be Changed After a Divorce?

Welcome to the Ayo & Iken legal roundtable. We tackle the toughest legal issues with down-to-earth commentary you can use from our expert panel of attorneys which spans Florida from Tampa and Orlando to Miami.

In this edition, our roundtable will discuss the importance of being keenly aware of your time-sharing options for your children during divorce proceedings and what happens if circumstances change and a planned settlement needs to be altered.

Our attorneys will touch on the need for people to be vigilant in coming up with a settlement that is best for them and their children because getting a judge to change a plan once it’s been agreed to is no easy feat.

We will be discussing these issues with Ayo & Iken Tampa Attorneys Crystal Phillips and Jeana Vogel; and our Orlando Attorney Jason Ponder. To get our panel talking we pitched them some questions tackling some of these issues:

Can a time-sharing agreement be changed after a divorce?

It takes some pretty substantial circumstances. If the children are not thriving, being neglected, getting bad grades. Maybe a child acting is out, or there is drug use while they are with the other party it can be possible. You can get a guardian ad litem involved, you can get a private investigator involved, interview the children, and view the home situation to try to prove things have substantially changed. It really depends on the facts and circumstances, so yes it can be done, but you have to keep in mind that the law demands meeting a very high threshold in order to modify time-sharing.

Yes, but there has to be a substantial, unanticipated and material change in circumstances. For example, you can’t quit your job and then file for modification. That’s a voluntary move. You can’t use to the courts as a laboratory to throw something out and see if it sticks.

In order to modify time-sharing after a divorce, you have to be able to show a substantial change in circumstance, meet that, then go toward showing it’s in the best interest of the child. And you have to show it was an unanticipated, material, and permanent change. So say your child goes into a new grade a year after you settle, that’s not unanticipated. But maybe a child was held back because their grades got worse or post-divorce they were diagnosed with a mental illness. Those can be unanticipated. And they have to be material to the best interest of the child. A new haircut you don’t like is not material. Things like mental health, domestic violence, parents that have to rely on a third party for childcare, a parent in the military – those are factors.

You file a supplemental petition to modify. You have to have what the court considers a substantial change in circumstances. And when the court says substantial, it means substantial. It has to pertain to the best interest of the children. If there are concerns, I always tell clients to keep a journal of things that have been going on, such as violations of an agreement where one is parent not keeping the other informed, withholding time-sharing from another, or talking badly about the other to the children. The more information we have the better chance of being successful. People have a better account of what happened with these journals rather than months later trying to recall.

Are there warning signs you should look for when children are returned to you if you suspect changes are going on worthy of a time-sharing modification?

The children not behaving, or behaving in a way that is different than their personality prior. Bad grades are warning signs something is going on in a situation. It’s always good to monitor social media things people are posting, that’s another good way to prove something may be going wrong.

Yes. You should always be keeping an eye on school grades and acting out. That’s a really big one. Since we’ve done the time-sharing schedule have there been more absences or tardiness at school by the child? If a parent is failing to get the children to school, that is a red flag. Medical issues can be important. If they are getting sick more, that can indicate a problem.

Are modifications hard or rare to get?

It can be difficult, that’s why I always tell my clients that it’s so important to be cognizant when you agree to a time-sharing settlement. It’s really serious when you sign those documents so you need to look at every angle and anticipate that things can change. I always recommend language that states in an agreement what amounts to a substantial change and if one occurs it can be a violation that warrants a modification. And you have to look at the facts. You can’t just say my 14-year-old doesn’t want to go to dad’s house. I will tell my clients that’s not enough. It’s a misnomer that once kids are older they get to decide. That’s not the case. If I’m going to file for a modification, it’s because I have facts and the case law to support it. You shouldn’t go in saying this is going to be a slam dunk.

Once a schedule has been established they are set up so modifications are hard to get. But I will say a lot of times they aren’t as hard as they sound. There a lot of loopholes and avenues you can take so it’s important to consult with an attorney to look at the facts and circumstances of each case.

If it’s not frivolous, if we have good reasons to seek a modification, I wouldn’t say it’s rare. Children grow and life circumstances just change. They are pretty common to file.

Is there is a reason the system is set up so the standard is so high for getting a modification?

I just think it is good public policy. If there’s not a mental handicap, if two people have the ability to enter into that agreement without coercion and without duress, and the court accepts it, people should be bound by that to a large extent. The only reason they should change that is if you can prove something happened that drastically changed circumstances. It’s serious to change time-sharing and it should be. It’s like entering into a contract in anything. If you sign it, you should live up to it.

The courts really want to promote the parents being in the lives of the children. The courts are looking out for the best interest of the child. So I don’t think it’s in the best interest of the child to modify time-sharing for every little thing. I’m sure they put a high burden on it because they don’t want to be flooded with litigation because parents have an argument.

That’s all for our roundtable. Feel free to read more about modifications on our website at https://www.myfloridalaw.com/child-custody-law/modification-of-parenting-plans-in-florida/.

I’ll leave you with the Florida statute concerning governing modifications. It outlines the high burden our attorneys discussed above and the need for vigilance in coming up with the right time-sharing settlement for you:

“A determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child.”