Substantial Change in Circumstances – Child Custody

When dealing with child custody modifications, there is a presumption in favor of the reasonableness of the original ruling.  Therefore, in order for there to be a change, the degree of change in the conditions and circumstances must be of a substantial factor.  Florida courts follow the substantial change test that was approved by the court in Wade vs. Hirschman.  The court requires that the party seeking modification of custody must show both that (1) the circumstances have substantially and materially changed since the original custody determination and that (2) the child’s best interest justify changing custody.  Further, the substantial change must be one that was not reasonably contemplated at the time of the original judgment.  Simply, the change must be one that was unforeseen at the time of the original ruling.  There is no definitive definition of what constitutes a substantial change.  Thus, it is determined by the facts of each case.  The following cases show instances in which a court has found there to be a substantial change in circumstances:

In Wade v. Hirschman, the court held that (a) evidence of parental alienation of the father by the mother; (b) failure of the mother to cooperate with the parenting coordinator and comply with the parenting agreement (c) mother’s unilateral change of the child’s school and therapist; and (d) a finding that mother was in contempt of court for her actions relative to visitation supported a substantial change in circumstances that warranted a modification.

In Sanchez v. Hernandez, the court held that an acrimonious relationship and the lack of communication between the parents regarding the minor child is insufficient to establish a change in circumstances to warrant modification.  However, this court made distinctions (a) that while the mother had threatened to prevent father from exercising his time-sharing, she never actually followed through with these threats; (b) the Guardian Ad Litem believed that mother was capable of facilitating a relationship between the child and the father; and (c) the father was allowed to visit the child so there was no evidence that the child was alienated from her father.

Small v. Fluegel-Small found that the father’s behaviors in (a) taking the child’s phone away and not allowing the child to call his mother; (b) refusing to return the child after the time-sharing period had concluded; (c) the father raised allegations of abuse in Nevada when those same allegations have previously been denied in Florida; (d) the father has also alleged abuse to DCF, which found no evidence to substantiate the allegations; (e) the experts opined that the ordeal was traumatic to the child; and (f) found that the father’s misconduct would likely continue to the detriment of the child demonstrated a substantial, material change in circumstances to warrant the modification to sole parental responsibility and limited visitation rights.

Florida law provides that when a parent refuses to honor the time-sharing schedule, the other party may (a) seek modification of the time-sharing schedule; (b) order make-up time-sharing; (c) order that the non-complying party pay attorney’s fees and costs to enforce the time-sharing schedule; and (d) hold the unruly parent in contempt.