In Florida, a ‘Parenting Plan’ governs the relationship between parents “relating to decisions that must be made regarding the minor child.” Section 61.046(14), Florida Statutes. See CN v. IGC, 316 So. 3d 287 (Fla. 2021).
A court’s authority to order parenting plans comes from section 61.13(2), Florida Statutes. That section sets out minimum required parenting plan provisions. For example, they include “time-sharing schedule arrangements” that specify when the child will be with each parent.
You and child’s other parent may agree to a parenting plan in Florida. Moreover, courts often prefer and approve agreed parenting plan provisions to those on which parents don’t agree. Still, the court need not approve your proposed plan. Instead, it may develop its own plan. The court may do that when it finds it’s best for your child. See Section 61.046(14)(a), Florida Statutes.
As discussed above, section 61.13(2)(b), Florida Statutes requires a parenting plan provide, at minimum.
1. Describe in adequate detail how the parents will share and be responsible for the daily tasks associated with the upbringing of the child;
2. Include the time-sharing schedule arrangements that specify the time that the minor child will spend with each parent;
3. Designate who will be responsible for:
a. Any and all forms of health care. If the court orders shared parental responsibility over health care decisions, either parent may consent to mental health treatment for the child unless stated otherwise in the parenting plan .
b. School-related matters, including the address to be used for school-boundary determination and registration.
c. Other activities; and
4. Describe in adequate detail the methods and technologies that the parents will use to communicate with the child.
See Laws of Florida, Ch. 2023-213 (amending section 61.13(2)(b)3., effective July 1, 2023).
A parenting plan that doesn’t meet the statutory requirements of section 61.13(2)(b), Florida Statutes is legally insufficient. Scudder v. Scudder, 296 So. 3d 426 (Fla. 4th DCA 2020). For example, in Hernandez v. Mendoza, 346 So. 3d 60 (Fla. 4th DCA 2022), a parenting plan provided for shared parental responsibility over health care decisions. However, the plan failed to provide that either parent may consent to mental health treatment for their kids. The Fourth District sent the plan back to the trial court to add this missing provision section 61.13(2)(b)3.a. requires.
For further discussion of a parent’s retained consent to “mental health treatment” for a child, read the Sampson Collaborative Law series beginning with Florida Parenting Plans: Consent to Child’s Mental Health Treatment.
Section 61.13(3) lists factors a Florida judge must consider when figuring out your child’s best interests and adopting a parenting plan. Additionally, the court may consider any other factors. See Section 61.13(3)(t).
Under Florida law, a judge may modify your Parenting Plan. But the judge can’t do that unless one parent proves a “substantial change in circumstances” and that requested changes are in your child’s best interest. See Section 61.13(3, Florida Statutes and Wade v. Hirschman, 903 So. 2d 928 (Fla. 2005). These principles apply in paternity cases, too. Section 742.031(1), Florida Statutes.
A parent seeking modification of parenting plan provisions must show:
A parent who wants to change the “status quo” of a parenting plan must file a petition and properly serve process on the other parent. Clark v. Clark, 204 So. 3d 589 (Fla. 1st DCA 2016).
Modification of a Florida parenting plan and time-sharing schedule requires a showing of a substantial, material, and unanticipated change of circumstances. See section 61.13(2)(c), Florida Statutes. That means the parent seeking to modify a parenting plan, “must show that (1) circumstances have substantially and materially changed since the original custody determination, (2) the change was not reasonably contemplated by the parties, and (3) the child’s best interests justify changing custody.” Hutchinson v. Hutchinson, 287 So. 3d 695 (Fla. 1st DCA 2019) (quoting Korkmaz v. Korkmaz, 200 So. 3d 263 (Fla. 1st DCA 2016).
On June 27, 2023, the Florida Governor received a proposed amendment to Florida law on timesharing. Effective July 1, 2023, Florida law on modification axes the requirement a substantial change in circumstances for modification be unanticipated. See CS/HB 1301, amending section 61.13(3), Florida Statutes; Laws of Florida, Ch. 2023-301.
Effective July 1, 2023, the remaining required elements for modification of a parenting or time-sharing schedule will be:
As stated earlier, a parent who seeks modification must show the parents didn’t anticipate the change in circumstances. See Patel v. Patel, 324 So. 3d 1001 (Fla. 1st DCA 2021) (emergency room doctor dad failed to show scheduling challenges, which made weekend timesharing difficult, differed substantially from those he faced when the judge adopted the parenting plan). So, does that mean in Florida you and the judge can’t anticipate and provide in your Parenting Plan for future changes? What if things that you and the other parent predict will happen do happen? Can you avoid returning to court?
Recent case law says parents’ may agree to modify custody for future changes, when certain milestones happen. That’s what parents agreed would take place in Perseo v. Donofrio, 379 So. 3d 1183 (Fla. 4th DCA 2024). Their parenting plan expressly set forth a series of timesharing schedules. Over three years, upon milestone events happening, dad’s timesharing with the child would increase. Neither parent would have to return to court for the agreed modified schedules to take effect. Moreover, the extraordinary “substantial change in circumstances” burden for modification wouldn’t apply.
In the next section, learn more about agreements you and the other parent might reach for events you predict.
