Changing Custody of Your Child Not So Simple

Your ex-husband or ex-wife has primary custody of your child, and now you think it is in your child’s best interest that you have primary custody. Whatever has changed in your life, the other parent’s life, or the child’s life has to be considered a substantial change in circumstance for that to happen.

Let me start off with a few clarifications on terms that are used in the courtroom but not in everyday life. First, the term “custody” does not exist in Florida any longer for family law cases. Florida now uses the term “time-sharing” and establishes a time-sharing schedule rather than a visitation schedule.

When you first negotiated the terms of your divorce or had a trial on your divorce (or paternity case) and the custody/time-sharing schedule of the children was at issue, both parents were on equal footing, theoretically, under the law. You either agreed or the court determined that your child’s best interest was best served by staying a majority of the time with you or the other parent. 

Now, six months, two years, five years, or more have passed, and there have been changes in circumstances where you believe you are in a better position to take care of your child than the other parent.

After an initial custody determination was made (for older divorces) or a time-sharing schedule was established (for more recent divorces), the best interest of the child is not the first aspect of time-sharing the court will consider to modify the time-sharing/custody.

Rather, you must first show a substantial change of circumstances.  Section 61.13, Florida Statutes, specifically states: “A determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child."

There are three critical words:

1. Substantial
2. Material
3. Unanticipated

The easiest term to define is the term “unanticipated.” If the parties knew of the circumstances at the time the original divorce was entered, and now one party wants to use it against the other party at a later time, the conditions were anticipated. For those that have access to court opinions, the cases of Paskieicz v.Paskiewicz, 967 So. 2d 277 (Fla. 3rd DCA 2007), and the Florida Supreme Court case of Wade v. Hirschman, 903 So. 2d 928 (Fla. 2005), are insightful. For example, if you knew the other parent had a substance abuse problem at the time the initial custody order was entered, you cannot then six months later claim you are the more fit parent because of the other parent’s substance abuse problem. 

As to “substantial” and “material,” your judge’s definition of these terms are very important. As the Florida Supreme Court stated, the trial court’s determination on what changes are substantial and material carry a lot of weight in the final determination on whether the court can then consider the best interest of your child. 

However, what we do know is that before you decide you want to change time-sharing, you need to have a lot more evidence than simply believing that your child will be better off. Some instances where I can envision a substantial change in circumstances would include a parent who develops an addiction problem, enters into an abusive relationship in which the child is exposed to the abuse, or where the parent continuously interferes with the other parent’s time-sharing. These are substantial, material to the child, and were unanticipated.

I have seen changes in custody in which a mother keeps the child out of school for extended periods of time and grades suffer; smoked around a child with asthma; or failed to keep the child clean of lice on multiple occasions. I have also seen a substantial change in which the mother was in an accident that left her unable to care for the children; the mother was addicted to pain-killers; the father left the state without court permission; and where the mother fabricated a domestic violence dispute.

Similarly, I have seen a court refuse to change custody when the “primary” parent stopped seeing her child for seven months for drug rehabilitation; where there were isolated domestic violence issues; and where a parent increased her alcohol consumption to a dangerous level, but then received counseling after the court became involved. 

To get started on your own, the forms to modify your time-sharing schedule are available online (along with every other family law form you may need), including an article on representing yourself. However, because the terms “substantial” and “material” are subject to interpretation, you should consult with an attorney knowledgeable about the judges in your case. 

You can contact your local bar association for a referral to a qualified attorney in modifications. Other resources to find answers to your questions include Bay Area Legal Services and Pinellas County's award-winning Self-Help Center that is open to anyone. You can also contact the Florida Bar Referral Service.