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Can a Judge Modify a Time-Sharing Order Based on Possible Future Events?


When a Florida court establishes a time-sharing schedule for two parents, that order can only be modified later if there is proof of a “substantial, material, and unanticipated change in circumstances” that makes such a modification “in the best interests of the child.” A judge will consider a number of factors in making such a determination. But critically, the just must not engage in speculation. For example, the court is not supposed to play “what-if” and say that if certain conditions arise, that will automatically lead to the modification of a time-sharing schedule.

Florida Appeals Court Rejects “Automatic Future Modification” of Parenting Orders

This subject actually came up in a recent decision from the Florida First District Court of Appeals, Hughes v. Binney. In this case, the trial court granted a modification in time-sharing, but said the order would be modified again if the father met certain requirements. The First District said this was an impermissible exercise of the judge’s discretion.

Here is some background on the case. The mother and father divorced in 2016. At the time of the divorce, the court entered a parental responsibility (custody) and time-sharing order regarding the couple’s two children. Shortly thereafter, the father found himself in what the First District described as a “cascading series of medical issues and attendant complications, which left him unable to fully fulfill his role as agreed upon in the divorce.” Apparently, the husband fell prey to an opioid addiction and was often seen in impaired state, particularly while driving.

The mother eventually asked the trial court to modify the original divorce judgment to grant her sole custody of the children, and granting the father only limited, supervised visitations. At the hearing, the father told the judge that he had “checked himself into and completed a twenty-seven-day inpatient rehabilitation program.” The judge, however, believed the father had no taken full responsibility for his opioid addiction.

That said, the judge also found that the father did not pose “any danger to the minor children in the home,” only while driving. Accordingly, the judge reduced the father’s time-sharing allowance with the children. Furthermore, the judge said that if the father “completes Veterans’ court, obtains his own residence, and has no motor vehicle violations” for one year, then his time-sharing rights would “revert” to the original schedule provided in the 2016 divorce judgment.

The mother appealed this part of the order, arguing the judge had no authority to impose an “automatic future modification” requirement. The First District agreed. It explained trial judges may not use “prospective-based analysis” when modifying a time-sharing schedule. In other words, the court is not allowed to “anticipate what the future best interests of a child will be.” Rather, the judge must determine whether there has been a “substantial change in circumstances” based on presently available evidence.

Speak with a Boca Raton Child Custody Attorney Today

There are many reasons why it may become necessary to modify an existing parental responsibility or time-sharing order. An experienced Boca Raton child custody lawyer can advise you of your rights and how best to proceed in these cases. Contact WiseLieberman, PLLC, to speak with a member of our family law team today.




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