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Child Custody
~ Defining Substantial Change ~

Parents seeking to modify child custody orders often hear the term: "substantial change". And those parents are often told that substantial change must be present to modify an existing child custody order. However, finding a working definition for substantial change relative to child custody is more difficult than it sounds. The information for this article was gleaned from various Florida DCA cases and one Florida Supreme Court case.

This article is meant to explain some of the case law and statutes surrounding the definitions of substantial change relative to child custody. As with most facets of family law the standards and definitions are continuously evolving. Nothing here is meant to be interpreted as legal advice, only information. If you would like help preparing legal documents for Child Custody -- we can help. We prepare documents for many family law matters in-house. Please read the article, and if you feel your situation has undergone substantial change, please contact us.

Unforeseen substantial change present; and a modification is in the best interests of the child

In Florida law, both case law and Florida Statutes there are specific circumstances which must exist in order to modify child custody. There is a bias toward upholding the original custody order and it is not to be modified unless these specific factors are present. First, the basis for modification of child custody must be due to a substantial change in circumstances that was unforeseen at the time of the original order. Second the change in circumstances must be material, and substantial. The movant is held to an extraordinary burden of proof supporting his claims of the change in circumstances. Third, only after the extraordinary burden of proof, that there has been a substantial and material change in circumstances, has been met, may the court decide whether a custody modification is in the best interests of the child. Absent a finding that the change in circumstances has in fact been substantial and material, a modification of custody is not warranted.

Correct Two Prong Test

The Florida Supreme Court case, Wade v Hirschman, 903 So 2d 928 (Fl. Sp. Ct. 2005) relied upon the lower court case, Cooper v Gress 854 So 2d 262 (1st DCA, 2003) in establishing the correct two prong test used to decide child custody modifications: substantial and material change in circumstances; and the best interests of the child. In Cooper the wife, who was the moving party, alleged as a basis for substantial and material change in circumstances that:

In Cooper the Wife Alleged:

(1) parties do not effectively communicate with each other; (2) former husband was sometimes unable to care for the children (due to his serious illness); (3) children desire to live with their mother; (4) it is in the children’s best interest to live with their mother.

And, In Cooper, the Court found:

(1) the parties do not effectively communicate with each other, but they would be unlikely to communicate effectively no matter the custody arrangement; (2) the father’s illness was in remission rendering his inability to care for his children due to his illness a moot point; (3) the parties did not have an agreement included in the final judgment stating that the issue of child custody would be revisited at a specified later date, such as the children’s entry into school; (4) wife failed to prove that there had been an unanticipated substantial and material change in circumstances since the entry of the final judgment -- despite the wife using those “magic words” substantial and material change in circumstances she was unable to offer any compelling evidence to persuade the Court. The wife further argued that when a party alleges a change in circumstances the Court is obliged to examine the issue of best interest of the children as if it were ruling on an original custody determination. The Court disagreed.

Two Part Substantial Change Test

The Florida Supreme Court case, Wade v Hirschman, states “… unless otherwise provided in the final judgment, the two-part substantial change test used in Cooper applies to modification of all custody agreements”. In Wade the father’s assertions that there had been a substantial and material change in circumstances were upheld as follows:

(1) evidence of parental alienation of the father by the mother; (2) failure of the mother to cooperate with the parenting coordinator and comply with the parenting agreement; (3) violation of shared parental responsibility as evidenced by mother’s unilateral change of the child’s elementary school and the child’s therapist; (4) mother was in contempt of Court for her actions relative to visitation.

San Marco relied on Wade In San Marco v San Marco, 961 So 2d 967 (4th DCA 2007), substantial and material changes in circumstances that resulted in custody modification are:

(1) father took the child to the doctor ten times -- the mother only once; (2) mother failed to provide the child with appropriate medical care by refusing to have the child inoculated for chicken pox and failing to keep other vaccinations current; (3) there was more structure in the father’s home and the child would have her own room and bathroom there; (4) if the child lived with the father she would not have to be placed in after-school care; (5) mother had moved several times since the divorce and the father’s home would provide a more stable school environment; (6) father had “a superior capacity and disposition to provide the child with medical care”; (7) mother’s frequent moves resulted in the child not having a stable and satisfactory environment. Custody modification was granted to father, with one judge dissenting.

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