Florida modification of child custody

Too often, I represent people who agreed to a Parenting Plan not knowing that modifying it later on is very difficult to do (but not impossible). Let's do that now! In order to modify a child custody arrangement, one must first prove a "substantial change in circumstance" and, if proven, that the modification is in the child(ren)'s best interests. The first step is the most difficult. In order to prove a substantial change in circumstance warranting a modification, the Client must prove: (a) a significant and permanent change has arisen since entry of the final judgment or last court order modifying the Parenting Plan, and (b) which was not contemplated at that time.

Once a Parenting Plan is established in the initial divorce or paternity proceeding, parents may continue to have difficulties in co-parenting. "Acrimony" between two parents is not a sufficient basis to modify a Parenting Plan. Substantial, permanent and unanticipated changes may arise, by way of example, with changes in a work schedule, a parent not spending the allotted time with the child(ren) as set out in the Parenting Plan, a parent delegating parental authority to third persons such as other family members or significant others, or a parenting continually making unilateral changes to a parenting plan. This is not an exhaustive list.

Once a parent proves a substantial change, then he/she must prove that the modified schedule is in the child(ren)'s best interests. This would require a reevaluation of the same criteria applied in the initial custody determination during the divorce proceeding. See practice are entitled: "Child Custody".

Florida Modification of Alimony

Alimony is also subject to modification. Like a Florida child custody modification, the former spouse seeking the modification must prove a substantial and permanent change in circumstance which was not contemplated at the time of the final judgment of divorce or last order modifying alimony. In addition, the former spouse must also prove that the change in circumstance was not voluntary.

Seasonal variations in self-employment income are usually not a permanent loss of income. However, loss of a major client may result in a permanent loss of self-employment income. If someone experiences loss of mobility due to a health condition and can no longer perform the tasks required of his/her vocation, then this may constitute a permanent, substantial and involuntary situation. Loss of employment may not be considered permanent and involuntary if the unemployed spouse has failed to use his/her best faith efforts to find comparable employment. On the other hand, if a former spouse's ability to pay alimony was based on income earned after, by way of example, 20 years of employment with the same company, and should this company go out of business, the former spouse may not have the requisite skills in the current job market to find comparable work with comparable pay. Each case is unique and is dependent on its own facts and circumstance.

If you reach retirement age, you may seek a downward modification or termination of your alimony obligation especially if you can no longer perform the required tasks of your vocation. In such an event, the Court may consider other sources of income and assets to determine if the former spouse still has an ability to pay alimony at the current level. This consideration may include assets which were awarded to this former spouse at the time of the initial divorce decree (what is commonly known as "double dipping"). If the retiring former spouse has insufficient assets and sources of income to support him/herself, then a termination of alimony may be warranted as long as it does not leave the recipient of the alimony in dire economic circumstances. would result in the receiving spouse being destitute, then a downward modification may be granted.

If the former spouse who pays alimony is "voluntary" under- or unemployed, then a wage or earning capacity may be imputed to him/her. As stated herein, a person may be considered voluntarily under- or unemployed if he/she does not use his/her best faith efforts to find employment in which he/she has the requisite skills and aptitude in the current local job market. In order to prove that a former spouse is voluntary under- or unemployed, then an expert vocational evaluator may be retained to evaluate the earning capacity of the former spouse who owes alimony.

Florida Enforcement of Support

When a party knowingly and intentionally fails to meet his/her support obligations as ordered by the Court, then you may be found in contempt. The court order must be clear and unambiguous. Assuming so, the primary question is whether a party knowingly and willfully (intentionally) failed to abide by the support order despite having the ability to comply. If a spouse willfully fails to pay alimony, then the Court would conduct what is known as a "Bowen" hearing. At such hearing, the Court would receive evidence regarding the offending party's finances (assets and income) and set a "purge" amount. The Court can also order incarceration as a sanction.

If an unexpected change has significantly impacted your ability to pay court-ordered support which was not expected at the time of the final judgment, then you may consider modification of that court-order. Sitting back and doing nothing may result in a contempt action being filed against you.

ST. PETERSBURG, FLORIDA DIVORCE ATTORNEY

GARTH R. GOODMAN, ESQ.

Modification and enforcement proceedings may be complicated. They may require further financial disclosure. Certain evidence may be inadmissible. Experts or lay witnesses may need to be compelled for deposition or hearing. My St. Petersburg, Florida divorce law firm, Garth R. Goodman, P.A., has over 30 years of experience in modification and enforcement proceedings. If you are in need of legal counsel, please contact experienced and aggressive Florida divorce attorney, Garth R. Goodman, Esq. He will personally handle your case.