To modify child custody in the State of Florida one must prove a substantial change in circumstances since the entry of the last order addressing custody and that the substantial change in circumstances now shows the best interest of another parent to take custody. This standard is used to modify a time sharing arrangement in any way.
It is a significantly heightened burden from an initial determination of custody. The reason a court heightens a standard to modify a previous judgment is the concept of res judicata. Basically, it is in the best interest of the system and the citizens that once a court order is made, that that court order not be disturbed unless a significant event occurs. Otherwise, the court system would be flooded with people who did not like a previous order simply going to the courthouse and trying to change it.
So, what is considered to be a substantial change in circumstances to modify custody? What we usually say, is to use the word “detriment” when deciding if you want to spend a bunch of money for an attorney and bring your family through the stresses of litigation to modify custody. To be sure, “detriment” is not in the standard to change custody in Florida, but it is a good tool. Ask yourself would a non-vested third party look at the current situation involving your children and say it is “detrimental” for the current time sharing to stay in place. This detriment must not have been anticipated at the time of the last court order. For example, if you currently have an equal time sharing arrangement, one week one week off, with your child that started at age 4 and when your child was in prekindergarten, it is unlikely that a court would consider a child starting first grade and any “detriment” that you believe would happen to the child on a rotating schedule starting school. It is difficult to say that you do not believe it is best for the child when in actuality, you knew that the child would be starting first grade, and so did the court, when the rotating custody order was entered. In other words, you cannot say that it was “unanticipated” that the child would be starting first grade and it would be difficult for that child to be in a rotating environment and keep up with school. There are situations, with additional facts added, that a court may decide to change based on the child entering first grade. For example, it probably would not have been anticipated if the other parent is being extremely difficult and not co-parenting in any way. One could argue that we assumed at the last order that the parent would co-parent, and now there is significant proof that the parent is absolutely uninvolved and fights at every term and now that is going to make it much more difficult when a child actually starts first grade. Again, when doing this analysis and deciding whether to put your family through litigation, throw in the word “detriment” to see if people would think that the situation you are describing is that bad.
Changing custody from a court order previously establishing custody is one of the most difficult things to do in the law. For more questions regarding this, contact Kenny Leigh & Associates a Florida Law Firm focused on representing men in the area of family law.