Child Custody Modification in Florida
Child custody modifications can be complex and emotionally charged. Seeking legal assistance can ensure your wishes are presented to the court in the most favorable light. Our experienced child custody modification attorneys at the O’Mara Law Group are committed to achieving your desired outcome.
Written and edited by our team of expert legal content writers and reviewed and approved by Attorney Mark O’Mara
Content last updated on: July 8, 2024
Child custody arrangements in Florida hold the promise of stability and permanence for the well-being of children. However, life changes, and sometimes so must these arrangements. If you experience significant shifts in your circumstances, the law provides avenues to reassess and modify custody. Still, it’s essential to approach this with legal guidance to ensure you’re protecting both your rights and the best interests of your child. Making changes without a court’s consent can lead to serious consequences, from reduced parenting time to contempt of court.
Modifying the visitation schedule can become complicated and emotional. The O’Mara Law Group is one of Florida’s leading child custody modification law firms. We can help you peacefully negotiate a modified schedule with the other parent. If an agreement is not feasible, we know what it takes to show the court that your wishes represent the child’s best interests.
What is a child custody modification
A modification of child custody is a change in parental responsibility, parenting time, or both. A court must approve any modification.
Modification of Parental Responsibility
Child custody in Florida entails both parental responsibility and parenting time. Parental responsibility is Florida’s term for legal custody. It designates which parent makes decisions about the child, such as medical and educational decisions. Parental responsibility is awarded equally to both parents unless it would harm the child.
Modifying parental responsibility would transfer decision-making from both parents to one parent. Sometimes, the court may transfer decision-making in one aspect of a child’s life to one parent.
For example, if a parent has shown a pattern of detrimental medical decisions or has denied the other parent access to medical records, the court may allow a modification to assign medical parental responsibility to the other parent.
Modification of parental responsibility is most likely to occur in situations in which a parent has engaged in the following:
- Substance abuse
- Domestic violence
- Violent criminal behavior
- Child abuse
Modification of Parenting Time
Parenting time is the legal term for physical custody and visitation in Florida. A court must authorize a change in any of the following:
- The visitation schedule
- Permanent relocation more than 50 miles away
- The parent with whom the child lives
If you need to make a change quickly because the child is in danger, you can request an emergency hearing.
Reasons for Modifying Child Custody in Florida
According to Florida Statute § 61.13, the family court can only modify custody arrangements if there is a qualifying change in circumstances that meets all three of the following criteria:
- Unanticipated
- Substantial
- Material
Substantial, material changes are changes that have a real effect on daily routines or the availability of one or both parents to adhere to the timesharing schedule. They must be circumstances that did not exist at the time of the initial custody determination or the last modification.
The initial custody order generally addresses changes in circumstances that the parties can anticipate. For example, a schedule change due to the child starting school would be anticipated, and any necessary changes in parenting time would be added to the initial orders. Thus, a modification would be unnecessary.
Examples of material, substantial changes that may not be anticipated ahead of time include the following:
- A change in your work schedule
- Relocation further than 50 miles away lasting longer than 60 days
- A change in either parent’s ability to care for the child
- Medical needs of the child
- The other parent’s failure to honor the timesharing schedule
- Substance abuse or domestic violence
- Long-term incarceration of the other parent
- A criminal conviction for certain offenses
Changes in a Parent's Work Schedule
Changes in a parent’s work schedule do not include irregular work schedules that existed when the court issued the original custody order. Unanticipated work schedule changes may stem from the following:
- Promotion
- Demotion
- Layoff
- Termination
- New employer
Completion of education or training by a parent that had not commenced as of the last custody determination
Relocation of a Parent
The Florida child custody statutes make it illegal for a parent to relocate with the child without permission from the court when another parent shares custody. Doing so may result in severe sanctions, including an order to return the child and loss of parenting time. It could also result in criminal charges.
A move with the child is considered relocation when all the following are true:
- The new location is at least 50 miles away.
- The relocation is not due to temporary circumstances such as education, vacation, or the child’s health care.
- The duration of the relocation is expected to be 60 days or longer.
If the other parent consents to your relocation with the child, you can submit a written agreement to the court for approval without a hearing. However, you cannot relocate until the court approves it. Otherwise, you will violate the custody arrangement.
If the non-relocating parent does not consent, you must petition the court. The other parent has the right to file an objection within 20 days. If they fail to respond, the court will assume the parent has consented and grant the petition.
Our Orlando relocation lawyers at the O’Mara Law Group may be able to assist you in negotiating an agreement with your child’s other parent, even if the parent seems deadset on fighting you. We often craft practical solutions that reassure non-relocating parents their roles in their children’s lives won’t be threatened by the relocation. If an agreement is impossible, we are always ready to fight for your wishes in court.
The primary consideration of the Orlando family court system is always the child’s best interests. When deciding whether to grant the relocation, the court will consider multiple factors, including the following:
- The reasons for the relocation
- The non-relocating parent’s reasons for opposing it
- Whether the relocation is in good faith
- Whether the relocation will enhance the quality of life for the parent and child
- The history of substance abuse or domestic violence of each parent
- Whether the objecting parent has met their financial obligations, such as child support
- The feasibility of maintaining a continuing relationship between the child and the objecting parent
If the court grants the relocation, it will update the timesharing schedule as needed and define ongoing communication methods between the non-relocating parent and the child and the frequency of those communications. The court will also determine the transportation arrangements for visits and which parent will pay for transport.
Changes in the Child's Needs
The needs of children naturally change as they grow. An initial custody order can anticipate and address most of these changes. However, some changes may not be foreseeable. These include the following:
- The emergence of special needs or disabilities
- Educational needs, such as gifted programs
- Academic or athletic opportunities
- Health care needs
- Mental health challenges
Unexpected changes in children’s needs can result in the child needing full-time care or having to travel to activities or medical care.
Emergencies
The court can issue an emergency injunction to protect the child from domestic violence or stop a parent from illegally removing the child from the state. An emergency custody order is a temporary order that will be revisited and potentially finalized at a subsequent hearing when the court can review all the evidence.
Changes in a Parent’s Ability to Care for the Child
A modification of custody may be necessary if a parent becomes disabled, unfit, or otherwise unable to care for the child. This may occur as a result of the following:
- Accident resulting in physical disabilities
- Worsening chronic health problems that create disabilities
- Substance abuse
A custody modification is also possible when a parent previously unable or unfit to care for the child becomes fit or able. For example, a parent denied parenting time due to substance use has the right to petition for a modification to increase parenting time once rehabilitated.
The Other Parent Violates the Time-Sharing Schedule
If the other parent violates the time-sharing schedule by failing to make the child available or show up for visitation, you can request a custody modification. The court frowns upon parents who violate the time-sharing schedule because it demonstrates a failure to prioritize the child’s best interests.
How to Change Custody Arrangements
The first step in requesting a change in custody arrangements is to hire a trusted child custody modification lawyer. Our lawyers at the O’Mara Law Group will go right to work to fight for you to reach an agreement with the other parent or immediately file your petition for a modification as your case warrants.
Reaching an agreement with the other parent can uncomplicate and hasten the process. However, we understand this is not always possible, especially when domestic violence is involved or the other parent has refused to put the child’s best interests first.
Petition for Modification
Whether or not we forge an agreement with the other parent, our first step will be filing a petition for a modification with the circuit court, specifying the changes you request. Once filed, this petition will be served on the other parent, who then has 20 days to respond.
Motion for Default
If the parent fails to respond within 20 days, we can file a Motion for Default and request a final hearing. The other party is entitled to receive a Notice of Hearing, but the judge will most likely grant the default judgment if the parent fails to respond, even if the parent shows up to the hearing.
Trial and Counterpetition
If the other party contests the changes or files a counterpetition, the court will encourage you to reach an agreement except when extenuating circumstances exist. As a Supreme Court-Certified Family Mediator, Mark O’Mara can provide mediation services if needed.
If an agreement still cannot be reached, we will file a Notice for Trial and request a trial date. If the other parent files a counterpetition, we will file an answer on your behalf before the 20-day deadline. The court will then issue a ruling on your modification according to the best interest of the child.
Custody Modifications and Child Support
When calculating child support, the judge looks at the income of both parents and assigns each parent a support obligation. This obligation is then adjusted based on the expenses related to the child and the number of overnight visits. The parent with the higher net obligation pays the other parent. A change in any of the following could change this amount:
- A change in the number of overnight stays with each parent
- A change in the monthly net income of either parent
- An increase or decrease in the child’s daycare expenses
- Changes in health insurance coverage by an employer
What factors will the court consider when modifying child custody?
The primary consideration of the court is the best interest of the child. Florida child custody laws have established that an ongoing close and continuing relationship with both parents is usually in the child’s best interest. Continuity in the child’s school, other relationships, and activities are also highly prioritized.
The court will seek to maintain as much stability in the child’s life as possible while also ensuring both home environments are safe and beneficial for the upbringing and well-being of the child. The court will look at each parent’s track record while carefully weighing the following:
- Previous compliance with the parenting time schedule
- Willingness to encourage an ongoing parent-child relationship with the other parent
- The division of responsibilities between parents and the involvement of third parties
- History of acting in the best interest of the child
- The practicability of the parenting plan concerning the location of both parents and the needs of school-age children
- Mental, physical, and moral fitness to parent
- The child’s home, school, and community record
- The reasonable preference of the child if the child has the capacity to express such a preference
- Knowledge of and active involvement in the child’s life and circumstances, including peers, academic performance, and activities
- History of substance abuse or domestic violence, if any
An experienced Orlando child custody modification lawyer understands the weight of the court’s responsibility in determining how to mete out child custody. We know what it takes to assure the court that granting your petition furthers the child’s best interests.
Without representation, you could innocently say the wrong thing or express emotion in a manner that harms your case. When you allow our attorneys at the O’Mara Law Group to present your case on your behalf, you can rest assured that we will present your case in a manner emphasizing the merits of your case.
The Role of a Guardian Ad Litem in Custody Modifications
If your custody modification involves a significant change or the other parent is contesting, the court may appoint a guardian ad litem to represent the child’s best interests. The guardian ad litem is a volunteer who objectively looks at both sides of the case and speaks to the court on behalf of the child.
The guardian ad litem will perform an investigation to determine the best interest of the child, which may entail one or more of the following:
- Interviewing the child
- Accessing medical records
- Asking the court to order expert examinations of the child or parents
- Assisting the court in obtaining such examinations
- Making written and oral recommendations
- Expressing the wishes of the child in writing
The guardian ad litem is not an attorney. However, a court may appoint an attorney for a child in addition to a guardian ad litem.
Custody Change Frequently Asked Questions
Below are answers to the questions we frequently receive about child custody modifications.
What voids a custody agreement?
A custody agreement is not legally binding until it is approved by the court, at which time it becomes legally binding. It can only be changed by a court order granting a custody modification after a parent petitions the court. If a modification is granted, it replaces the initial custody order.
Can sole custody be reversed?
Sole custody is rare in Florida. It is generally only granted if one parent is unfit or unable to care for the child. However, the Florida court generally considers it in the best interest of the child to have a close and continuing relationship with both parents.
Thus, if there is a change in the ability or fitness of a non-custodial parent denied custody, that parent may request a modification. If the court finds the parent fit, it may grant joint custody with a time-sharing schedule to the extent that the child’s best interests are served.
Can you modify a parenting plan without going to court?
You can modify the parenting plan with the help of an attorney outside of court and file it with the court if you and the other parent can agree on all the terms using the collaborative law process. You will need the assistance of a certified collaborative law attorney, such as Mark O’Mara.
However, you must be able to show that there is a substantial, material, and unanticipated change in circumstances and that the modification serves the child’s best interests. Otherwise, the court will not approve it. If you cannot agree on the changes, you must file a petition and go to court.
Can a child request a custody change?
A child cannot petition the court for a change, but a parent may request a change if there are changed circumstances, such as the child’s needs or domestic violence. The court will consider the wishes of the child.
Why Work with O'Mara Law Group for Child Custody Modification in Florida
With more than 30 years of experience, our Orlando family lawyers can get the results you need in your child custody modification case. We have seen firsthand how unique each child custody situation is. So, we give every client attentive, personalized service.
Our commitment to each client enables us to achieve unparalleled client satisfaction and recognition by our peers as Super Lawyers and Top 100 Trial Lawyers. These designations are only given to the top lawyers in the state.
Our founder, Mark O’Mara, is one of the state’s most qualified and respected family law attorneys, with the following distinctions:
- Board-certified in Family Law
- Certified in Collaborative Law
- Supreme Court-Certified as a Family Mediator.
Contact the O’Mara Law Group Today for Your Child Custody Modification Needs
If you need to modify your child custody arrangement, you need the assistance of an experienced Orlando child custody modification lawyer to ensure your request is viewed favorably by the court. If the other parent is contesting the changes, emotions can run high, adversely impacting your presentation in court.
Our child custody lawyers have extensive experience with hotly contested divorces, child support, and other sensitive family law cases. You can count on us to fight for you and ensure the court sees your best side. Contact us today to get started.
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