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Marriage Settlement Agreement & Time Sharing

bigstock-Father-And-Son-59250.jpgMemorandums prepared by attorneys (it is important to remember that memorandums are arguments in the law. It is almost never a black-and-white issue.  Some arguments consist of the below:

Issue: Whether modifying an agreed upon parenting plan is appropriate where the plan does not include a specific time sharing schedule after the child is no longer a newborn.

The marriage settlement agreement in question includes the following language regarding time sharing between the parties. “The husband shall have liberal visitation, at his convenience, while the child is a newborn. He shall travel to New York to exercise such visitation, and the parties have made a separate agreement regarding child support to facilitate such travel.” At the time the parties entered into this agreement, the child was less than two months old. The agreement also grants the parties shared parental responsibility and it includes the following language, “Each recognizes that the other parent has a right to share and fully participate in all matters pertaining to the child,” and “each parent also accepts the right of the child to frequent and continuing contact with both parents, and the child’s right to interact frequently on a normal basis.” Despite this language permitting “liberal visitation” and the award of shared parental responsibility, former husband is rarely permitted to see his son, and nine years later, has no specifically allocated time sharing. This original marital settlement agreement was not done by one of our attorneys, attorneys at our firm would have never allowed a client to sign something that does not give him specific days. We were hired to try to fix this.

The issue before the court is whether the marital settlement agreement and parenting plans should now be modified to specify a time sharing arrangement for the two parties. Florida courts have consistently applied the “substantial change” test to such modification questions. In this case, it may seem that the grounds for modification are weak, as the child growing out of infancy is the primary change. However, the court does not have to apply the “substantial change” test to the instant case. The court should first consider the purpose and the spirit of the law. In 2015, the Fourth District Court of Appeals relied upon the intent of the substantial change test in deciding whether to apply it to the parties in Chamberlain v. Eisinger. Demonstrating to the court that there has been a sufficient substantial change in circumstances places an “extraordinary burden” on the parties seeking to modify the custody order. This high burden is intended to preclude parties to a dissolution from continually disrupting the lives of children by initiating repeated custody disputes. While there is certainly a high burden, it “should not preclude legitimate review in the best interest of the child where there have been significant changes effecting the well being of the child, especially when the change of circumstances has occurred over a substantial period of time.”

In the instant case, the parties have not “continually disrupted” the child’s life with ongoing litigation. The former husband is only now initiating legal action after nine years of former wife employing tactics to prevent him from exercising his “liberal visitation.” Given the circumstances in this case it is in the best interest of the child to have a regular schedule of time sharing with both parents.

In the alternative, if the court disagrees or does not consider nine years to be a substantial period of time, “the first prong of the two-part substantial change test for modification of child custody can alternatively be met by demonstrating material facts concerning the welfare of the child that the court did not know at the time the decree was entered.” The marital settlement agreement/parenting plan in this case is far too vague, and lacks vital details which are necessary to assist the parties co-parent for the next 18 years. It is unreasonable to believe the parties could have created an 18-year parenting plan when they had only been parents for two months. While the agreement is lacking, the intent of the parties to share parental responsibility is very apparent. To hold them to this agreement without allowing for modification, would only be denying him equitable relief, it denies him a constitutional right to parent.

The Florida Supreme Court has held that, “it is well settled that a parent has a legal right to enjoy the custody and companionship of her or his minor children, unless clear and convincing evidence shows that such custody will be detrimental to the child’s welfare.”

The right of the natural parent is also recognized by the United States Supreme Court, which has stated that a parent’s desire for and right to the companionship, care, custody, and management of his or her children is an important interest that “undeniably warrants deference and, absent a powerful countervailing interest, protection.”  Former husband in this case, did not enter into an agreement to give away this sacred right. It is clear from the language of the agreement that he was going to be a part of the child’s life from afar, as the parties agreed the child could be raise in New York. However, it is also clear that he wanted to be an active and involved parent. A substantial amount of time has passed since the agreement was entered, however, this child has at least nine years of minority remaining.

Denying this family the opportunity to create a unique, specific parenting plan that fits their needs is not abiding by the spirit of Florida law. In creating the presumption for shared parental responsibility and creating time sharing laws, the legislature has tried to encourage positive co-parenting in dissolution cases. Strictly applying the “substantial change” test without considering the best interest of this child which have considerably changed in the nine years since the agreement was entered could not achieve justice. Such an interpretation of the law only denies this young child a real relationship with his father, based on an agreement which clearly indicates no one intended to be final. Based on the law outlined above and these circumstances, the court should modify the marital settlement agreement.

Kenny Leigh and Associates is the largest family law firm in the entire state of Florida.  Kenny Leigh and Associates has nine locations.  Kenny Leigh and Associates exclusively represents men and exclusively practices family law.