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Modifying a Child Custody Agreement

Final orders entered by the court, including in matters of child custody, are presumed to be correct. Therefore, the ability to change an order after it has been filed is very restricted. An order for child custody can be modified after it has been entered by a family court judge; however, the circumstances surrounding the modification and the proof offered to the court must be significant.

Florida Law for Child Custody Modification

In order to prevail in a child custody modification, the parent or guardian petitioning the court must show a “substantial change in circumstances” that has occurred since the entering of the Final Judgment for child custody that warrants a modification in that custody. In addition, the petitioning party must show that, in addition to the substantial change, the modification would also be in the child’s best interest.

Under Florida law, Section 61.13 defines a substantial change in circumstances as something that is substantial, material, and unanticipated at the time of the Final Judgment. Every element of the definition must be met in order to show a substantial change.

Two-Pronged Test

The Florida Supreme Court established a two-pronged test for determining whether to approve a modification for child custody: showing a substantial change in circumstances and proving that the modification is in the best interests of the child. In Wade v. Hirschman, the court relied on a lower court case, Cooper v. Gress, to create this two-pronged test.

Substantial Change

In order to determine a substantial change, Florida courts have established that parents should expect certain changes within a child’s lifetime, but only unanticipated changes should form the basis for a modification. The passage of time and the change that it can bring is likely to have been anticipated in the original custody arrangements.

An example of an unanticipated change may include a parent’s mental health issue that was not present at the time of the original decision, a new substance addiction, or abuse or neglect from a previously gentle parent. The court has also found that a breakdown in communication between parents is not enough to warrant a substantial change.

Best Interests of the Child

The courts have also made clear that the child’s best interest is not the same as saying that maintaining the status quo of the child custody agreement would be a detriment to the child. The petitioning parent must prove that it is in the child’s best interest to modify the agreement.

In Wade, the court found that evidence of parental alienation of the father by the mother, failure of the mother to comply with the parenting agreement, violation of shared parental responsibility by the mother’s unilateral change of the child’s elementary school and the child’s therapist, and the mother’s contempt of court for her visitation actions were enough to warrant modifying the child custody agreement for the best interest of the child.

Let a Florida Family Law Attorney Help

If you or someone that you know wishes to modify an existing child custody agreement or has other questions regarding Florida family law in Orlando or the surrounding area, let the experienced attorneys at Steve W. Marsee, P.A. help. Call or contact the office today to speak with an experienced family law attorney.

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