Parenting Plans Replace Visitation and Custody Agreements
Last year, Florida's child custody laws changed significantly. As part of these changes, state courts will no longer award primary residential custody of the child to either parent or visitation time to the noncustodial parent. Instead, state law now requires parents to develop a parenting plan that will spell out when the child will spend time with each parent, where the child will live and how the parents will make important decisions regarding the child's care and upbringing.
The new parenting plan law reflects a desire on the part of the state legislature to move away from a child custody system that favored the mother over the father and towards a more progressive system that recognizes the importance of both parents playing an active role in the child's life.
Among other things, the parenting plan must address:
- Time-sharing: In addition to determining the child's weekly schedule, parents must decide upon a holiday and vacation schedule.
- Decision-making: Parents are presumed to share decision-making authority for the child's day-to-day activities, but sometimes parents have significant disagreements on major issues. When parents can't agree, which parent will be in charge of major decisions like religious upbringing and school selection?
- Communication: When the child is with one parent, how can the other parent communicate with the child? Are there restrictions on phone calls? Will the child have access to email?
While the goal of a parenting plan is to provide each parent more time with the child, circumstances may prevent a 50/50 split in parenting time. For example, if the parents live in different cities or even different states, it may be impossible to divide time equally. Also, if there are circumstances that might pose a danger to the child, a parent's contact with the child may be limited or denied altogether, such as in cases of substance abuse, domestic violence and/or child abuse.
Once the court has accepted a parenting plan, the plan still may be changed at a later date. The parents can work together and agree to make the changes or, if the parents cannot reach an agreement, the parent desiring the change can petition the court for a modification.
To successfully petition the court for a modification, the parent must demonstrate two things:
- There has been a substantial change in circumstances warranting a change in the parenting plan (or custody order, if entered before the 2008 changes in the law)
- It is in the child's best interests to grant the modification
Under Florida law, a "substantial change in circumstances" means a substantial, permanent and involuntary material change. In other words, the change cannot be temporary, it cannot be caused by something the parent voluntarily did and the change must be big enough to warrant the court changing the original parenting plan or custody agreement.
Some of the factors the court may consider in modifying a custody agreement include:
- Any difficulties in carrying out the current custody or parenting plan
- The physical and mental health of the parents
- The financial circumstances of each parent
- The parents' relationship with one another
- Any deliberate acts by either parent to prevent the other from spending time with the child
- The level of involvement of each parent in the child's life
- The length of time the child has spent with each parent
- The type of living environment each parent can provide
Generally, the court will consider several factors in determining whether the custody arrangement should be changed. While any one of these factors on their own may not be enough to justify a modification, two or more together may be sufficient evidence for the court to grant the change.
Parent relocation is one of the most common grounds for seeking a change in custody. The modification request may be submitted by a relocating parent who wants to take the child with them, or a parent opposing relocation who wants the child be placed with them.
Oftentimes, when one parent moves to another town or part of the state, the terms of the previous parenting plan or custody agreement can become impossible to keep. The travel expenses of the non-relocating parent are likely to increase while the frequency of time spent with the child is likely to decrease. This becomes even more problematic when one parent wants to move to another state.
Under Florida law, the parent who intends to relocate is required to notify the other parent of the intended relocation. The notice must be in writing and include specific information, such as the reasons for the move. After receiving the notice, the non-relocating parent has 30 days to file an objection to the proposed relocation. If a parent relocates with a child without providing the required notice, the court may order the child returned and award temporary custody to the other parent.
In determining whether or not to allow relocation, the court ultimately will base its decision on the best interests of the child. In reaching this decision, the court may consider a variety of factors, including:
- The nature, quality, extent and duration of the child's relationship with each parent
- The impact of the move on the child's emotional development
- Whether the child's relationship with the non-relocating parent can be preserved with alternate arrangements
- The child's preference, if the child is of suitable age and maturity level to communicate one
- Whether the relocation will enhance both the relocating parent and the child's lives
- The reasons the parent wants to move
- The reasons the parent opposes the move
Parents also may reach a voluntary agreement regarding one parent's proposed relocation. As long as they sign a written agreement that proves both parents consent to the relocation and provides a new time-sharing agreement, the relocating parent will not have to seek court approval for the move. However, the relocation agreement still will have to be submitted to the court for ratification.
Ultimately, the terms of any parenting plan will depend upon the individual circumstances at hand. For more information on the 2008 changes to Florida's child custody laws, parenting plan modifications or relocation, speak with a knowledgeable family lawyer.