How to Modify Timesharing Custody
Posted in Custody on March 25, 2017
Timesharing is the current term utilized in Florida to describe just that – how the parents will share time with their children. It’s a safe, politically correct term that offends no-one. Back in the day, before the legislature saw fit to make a change, it was called custody. We talked about primary and secondary parents; clearly offensive terms that relegate one parent to a lesser role, “secondary” to the “primary” parent. Being referred to as the “secondary” parent is offensive because parents, mother and father, should be on equal footing when it comes to parenting, right? Of course right. Not an issue unless there is some compelling reason that parents should not be on equal footing. For purposes of this discussion, we will presume that both parents are relatively nice, normal people. No history of drug abuse, domestic violence or anything else that would lead a reasonable person to question how one parent is even allowed to spend time alone with the children. The timesharing is set forth in the parenting plan, the comprehensive (about 7 pages) document the Florida Supreme Court requires divorcing parents to file in all cases, be it an contested or uncontested Florida divorce. If your case goes to a final hearing, the court will order the parties to abide by a parenting plan and timesharing schedule it deems to be in the best interred of the children.
Your Current Timesharing Plan and the Desire to Change
You’re divorced, hopefully happy, and Jimmy and Jenny, your two kids who were young children at the time of your divorce are now older. You’ve changed jobs and you now work nights. You remarried and had another child. Your ex is a miserable excuse for a parent and has not followed the timesharing schedule for any significant period and comes in and out of the children’s lives like “- – – -” through a duck. You’ve grown tired of the drama, weary of changing your schedule to accommodate the ex and their new relationship and want a change. You want to bring a sense of normalcy back to your life and, more importantly, the lives of your children; the court’s primary concern as always – the best interests of your children. Through you want to make a change to the current timesharing schedule, you need to know whether you should “go for it” and, if so, how best to accomplish your desired goal. Now what?
As always, and I do mean always, try to resolve the issue before seeking relief with your friendly Florida family law judge. Believe me, they do not want to see you in court. The last thing a judge wants to do is tell parents how they are going to parent. Make no mistake, they will “settle” the issue for you but a final hearing by general magistrate or judge should be your court of last resort. For the most part, parents are free to enter or modify whatever agreements they so desire. Consenting adults are masters of their own domains, and families, sort of. Any timesharing agreement or modification means nothing, nada, zero and has absolutely no legal effect unless and until it is ratified and made an order of court by the judge assigned to your case. If I had a nickel for every time a potential client told me they have an agreement with their spouse that was not ratified by the court, well sir, I’d have quite a few nickels. No order – no agreement, period. A piece of evidence perhaps but nothing that can be enforced. So, you’ve taken the high road and tried to get it resolved without having to call me but your ex, the ungrateful S.O.B., is uncooperative. No go on plan A. What next?
Call your lawyer or DIY?
If you’ve looked at my website, you know that I am not a fan of DIY. Legal work should be done by lawyers, period. Problem is that most lawyers charge too much money. We make legal representation affordable in all family law matters throughout Florida – all 67 counties. I’ve often wondered why people are willing to play lawyer, but not a doctor, plumber, electrician or any other occupation that requires some level of knowledge and proficiency; but I digress. Do yourself a favor and call the lawyer – it’s a smart, smart thing to do.
The initial discussion with your counsel must include a discussion about the law, yes, the law. The rules of the game if you will. If your lawyer doesn’t tell you “how to play” in the first 10 minutes – call someone else. The rules for a modification of timesharing or any other family law issue, alimony or child support, are simple: has there been a permanent, substantial and unanticipated change in circumstances and, if so, is it in the best interests of the children to modify the existing plan?
Before going any further, let me make one thing perfectly clear (I like to quote presidents, past and present): “squabbling” and disputes over trivial issues do not rise to the level of a substantial change in circumstances. “My ex feeds the kids pop-tarts for dinner and allows the 6-year-old to watch the Simpsons” are not issues to take up with the judge or to even file a petition for modification. Yes, if that is your situation, you will find a Florida lawyer willing to take your money – not this one. Save the lawsuits for things that really matter.
So, what is substantial? Like pornography, I can’t tell you what it is, but I’ll know it when I see it. That really is how it works. It’s very subjective and unique to each family. Here’s an easy one: the ex has taken a liking to the crack pipe, is now unemployed and lives under the 3rd Avenue bridge. Though I am not the judge and can never guarantee a result, I would bet the farm that the court would modify. Here’s a hard one: the ex changed jobs, has missed 3 of the last 8 weekend visitations and hasn’t called in two weeks. Substantial? Maybe. Permanent? Who knows. Unanticipated? Probably. Common sense. It all boils down to good old common sense. You are emotional and need stability for your children. It’s the lawyer’s job to calm you down and get you to see the forest through the trees. Once you can focus on the facts and understand how the law is applied, move forward as you see fit.
What’s the child timesharing process?
Your friendly lawyer will prepare and file a petition for modification and allege that there has been a permanent, substantial and unanticipated change in circumstances since entry of the order establishing or modifying the parenting plan. Those words must be supported by factual allegations, whatever they may be. No need to write a book – K.I.S.S. – and I do not mean the band. The judge is busy and is more inclined to read a short, clear, concise statement rather than the voluminous papers filed by most billable hour guys. After the ex is served and responds, the case will go to mediation where most cases can and should be settled. If not off to a final hearing you shall go. The court will listen to your witnesses, look at the evidence (one of the best pieces of evidence in modification cases is a calendar) and make a decision. Most will announce their decision on the spot but there are cases that require the judge to ponder for a while before ruling. When children are involved, judges are not want to make snap decisions, a very judicial trait to be sure.
What about the desires of the kids?
My rule of thumb is this: the inmates do not run the prison. Who cares what they want? Yes, a 16 or 17-year-old may have some say in the process and if you’ve got “Doogie Houser” in your house, him as well. Other than that, the sweet bundle of joy you call son/daughter should do their homework, help around the house and stop squawking that the ex doesn’t have Netflix.
Need help with a modification of parenting plan? Remember, “When it’s time to leave (or modify) . . . Call Steve.”