Changing a Parenting Plan (Custody)
A Parenting Plan is a document that is incorporated into a court order. The parenting plan resolves issues like when the children will be with each parent, how the parents will decide issues about the children, what will happen when a parent wants to travel out of the state or country with the child, and how extracurricular activities will be handled.
To change (modify) a Parenting Plan and Parental Responsibility, a parent must list how the child’s circumstances have substantially changed and/or how changes in a parent’s circumstance have substantially impacted the child, and describe how making a change will be good for the child.
Substantial changes include things like: a parent has developed an illegal drug problem; child abuse or neglect has occurred; the child is struggling with mental health issues; the child is doing poorly in school because of the other parent; or a parent is unable to continue the current timesharing schedule.
CLSMF provides legal assistance to parents or people that need to change or modify the terms of their court-approved Parenting Plan and Parental Responsibility, Child Support, and Alimony. This informational page is for Florida residents who have already filed and completed a divorce or paternity case with a Parenting Plan.
Sometimes people refer to parenting plans as “Custody” plans, or just “Custody.” Because that terminology is no longer used in court filings and proceedings, we do not refer to it as Custody in this document.
For people who need to file court documents themselves, check out the court’s mobile app. Find information here.
WHAT ARE MY RIGHTS?
“Parental Responsibility” is a term used in a parenting plan or court order, which is the legal term for a parent’s right to make decisions about their child. Parents may share the decision-making, or one parent might make all the decisions, referred to a sole parental responsibility.
To change (modify) a Parenting Plan and Parental Responsibility, a parent must list how the child’s circumstances have changed and describe how making a change will be good for the child.
The court may not change the Parenting Plan or Parental Responsibility without a pleading (pleading is what you write in your papers) that must prove a “substantial, material, and unanticipated change in circumstances.”
Substantial changes include things like: a parent has developed an illegal drug problem; child abuse or neglect has occurred; the child is struggling with mental health issues’ the child is doing poorly in school because of the other parent; or a parent is unable to continue the current timesharing schedule.
To modify a parenting plan, the court will consider the “Best Interest Factors” in addition to the substantial, material, and unanticipated change in circumstances that led to the filing of the modification. The Parenting Plan must abide with Florida Statute Section 61.13(3). (Read it in its entirety online here).
Best Interest Factors
The court evaluates the best interests of the child by following the considerations below (paraphrased from the Florida Statute Section 61.13(3) for ease of understanding):
- Has each parent proven they are willing and able to encourage and allow a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when the other parent requests changes or adjustments? For example, has the other parent actually followed the schedule or has the other parent withheld the children or bad-mouthed you in the children’s presence?
- How will parental responsibilities be divided after the case and how many parental responsibilities will be handled by third parties such as babysitters, friends, or family members? For example, does the other parent actually spend time with the children during their timesharing, or do they just drop off the children to another family member or friend?
- Has each parent proven they are willing and able to determine, consider, and act upon the needs of the child rather than their own needs or desires?
- How long has the child lived in a safe and comfortable environment and how important will it be for them to continue living in that environment?
- Where does each parent live? How much travel time is required for the parenting plan to work? The court will consider where the child attends school. This factor does not create a presumption for or against relocation of either parent with a child.
- What is the moral fitness of each parent?
- What is the mental and physical health of each parent?
- What is the home, school, and community record of the child?
- What does the child want? What the child wants might be considered if the court thinks the child is intelligent and old enough to tell the court their wishes.
- How willing and able has each parent been to stay aware of important factors in the minor child’s life, such as the child’s friends, teachers, medical care providers, daily activities, and favorite things?
- How willing and able has each parent been to provide a consistent routine for the child, such as discipline and daily schedules for homework, meals, and bedtime?
- How likely is each parent to communicate with the other parent and keep them up to date on issues and activities regarding the minor child, and how willing are they to cooperate on all major issues when dealing with the child?
- Is there evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect? This will be considered regardless of whether there is a prior or pending action relating to those issues. If the court accepts evidence of abuse or neglect, it must state in writing that the evidence was considered when evaluating the child’s best interests.
- Is there evidence that either parent has knowingly provided false information to the court regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect?
- How were parenting tasks and responsibilities divided before and during the case? Were any parenting responsibilities handled by third parties, such as babysitters, friends, or family members?
- How willing and able has each parent been to participate and be involved in the child’s school and extracurricular activities?
- How likely is each parent to maintain an environment for the child which is free from substance abuse? Substance abuse includes alcohol abuse.
- How willing and able is each parent to protect the child from the court case process by not talking about it with them, not sharing documents or electronic media related to it with them, and not making negative comments about the other parent to the child?
- What are the child’s needs based on their age and development? How willing and able is each parent to meet those needs?
- Are there any other factors that have not been mentioned but could impact your specific parenting plan, including the time-sharing schedule?
When a court case is pending before the court or a final parenting plan is in place, the relocation law applies. Relocation is when a parent moves further than 50 miles away for longer than 60 consecutive days. The relocation law sets the rules that a parent must follow when relocating with the other parent’s agreement and rules to follow to get a court order allowing relocation when the other party does not agree. A parent may not move with the children without following the relocation law. Failure to follow the law can cause the court to enter an order requiring the child to be returned to the area where they used to live, pay the other party’s court costs, and could even cost them their time with the children.
A long distance parenting plan should be developed when a parent is planning to relocate the children’s principal residence. The principal place of residence is the place where the children lived at the time of the last order that established or changed the time-sharing plan, or where the children lived when a pending action was filed.
Relocation may be done by mutual agreement in a plan detailing the new location and time-sharing using form 12.950(a) which can be found at https://www.flcourts.org/Resources-Services/Court-Improvement/Family-Courts/Family-Law-Self-Help-Information/Family-Law-Forms.
If both parents do not agree, the parent seeking relocation must request permission from the court and present a detailed plan for time-sharing.
Using 12.950 (c) or 12.950 (d), here are some of the elements a relocating parent’s petition should include:
- The relocating parent must show relocation is in the best interest of the children.
- A description of the location of their intended new address.
- A mailing address of the intended new residence.
- A phone number of the intended new residence if known.
- The date of the intended move or proposed relocation.
A detailed statement of the specific reasons for the proposed relocation. For example, if the reason is a new job offer the parent should attach the offer to their petition.
A detailed time-sharing plan showing how the other parent will have continuous contact with the children. See FL Statute 61.13001
A court may modify a child support order if a substantial change in circumstances is shown. An example of a substantial change in circumstances might be a change in income. To meet the legal standard, the change in income must be an involuntary decrease in income or an increase in income. If this occurs, then child support might be changed through a modification action. If a parent pays child support but does not exercise time-sharing with their child as awarded by the court, then there could a change in child support.
WHAT DO I NEED TO DO?
The Florida Supreme Court has approved forms that can be used to file a modification (change) action on your own.
The forms can be found at www.flcourts.org under the self-help section of the site and include detailed instructions to help you with completing and filing the documents.
To file for Modification of a Parenting Plan and Parental Responsibility, you will need to complete and file the following documents (which can be found at https://www.flcourts.org/Resources-Services/Court-Improvement/Family-Courts/Family-Law-Self-Help-Information/Family-Law-Forms):
- Supplemental Petition to Modify Parental Responsibility, Visitation or Parenting Plan/Time-Sharing Schedule and Other Relief, form 12.905(a)
- Summons, form 12.910(a)
- Family Law Financial Affidavit, form 12.902(b) or 12.902(c)
- Uniform Child Custody Jurisdiction and Enforcement Affidavit, form 12.902(d)
- Cover Sheet for Family Court Cases, form 12.928
- Notice of Related Cases, form 12.900(h)
- Application for Determination of Civil Indigent Status. This form can be downloaded HERE. You may also obtain a copy from your local clerk but remember to ask for it directly by name.
File the documents listed above in the county where the other party/parent lives or in the county that entered the last order. The clerk will complete the Summons with an official seal. The Summons must be served to the other party.
Service is the process of sending court documents to the other party — delivered by a sheriff. This legal notification process informs the other party that the case was filed and provides them the opportunity to respond to the court.
After you have filed the Modification action, the clerk may help you by sending the documents to the local sheriff for service to the other party. If the clerk sends the court documents to the sheriff, then the sheriff will take the papers to the other party so they know about the case. If the clerk does not forward the documents on your behalf, you will need to send a copy of each document that you filed to the sheriff in the county where the other parent lives so the sheriff can complete the service process.
Upon receiving the documents, the other parent has 20 days to file a written response with the court and mail you a copy. If the other party does not file a written response, the clerk may enter a Clerk’s Default against them. You may also file a Motion for Default. A motion is a written request to the court to make a decision about a case.
If the other party never participates in the case, the court will likely grant your Motion for Default and you will likely receive everything you have requested in your supplemental petition. Even if the other party has a default entered against them, they may still appear before the court. The court will want to make sure it knows what is in a child’s best interest before it enters an order. So, while the case is still open, the other party can present evidence about what is in the child’s best interest.
On the other hand, if the other party does file a written response, they will file an Answer, which might also include a Counterpetition. The other party is not required to file a Counterpetition, only an Answer. A Counterpetition is the other party’s request from the court. You are required to respond to a Counterpetition by filing an Answer within 20 days. You may answer the Counterpetition with form Answer to Counterpetition, form 12.903(d), which can be found online at https://www.flcourts.org/Resources-Services/Court-Improvement/Family-Courts/Family-Law-Self-Help-Information/Family-Law-Forms.
When you want to modify child support, each party must provide certain financial documents, such as pay stubs and tax returns. The documents the parties must exchange are listed on the Certificate of Compliance with Mandatory Disclosure, form 12.932, and must be exchanged forty-five days after service on the responding party.
Parties do not file their documents with the court; they give them to the other party.
If a person does not have a required document because it is not something they have ever had, the request does not apply and there will be nothing to give the other party. If a document is not in that person’s possession but is something they can get, such as a bank statement, they must obtain it and give it to the other party.
The certificate is the only document filed with the court. Complete the certificate by placing a check next to the item provided to the other party. The certificate is signed under penalties of perjury. The Certificate of Compliance with Mandatory Disclosure can be found at https://www.flcourts.org/Resources-Services/Court-Improvement/Family-Courts/Family-Law-Self-Help-Information/Family-Law-Forms.
Once each party has filed their initial documents as discussed above, the court may schedule a Case Management Conference. A Case Management Conference is a hearing set by a judge to make sure the case moves forward. The Case Management Conference is typically not a time for the court to receive evidence from the parties. The court will likely check to see if the necessary documents are in the file from each party and may schedule a Mediation or Hearing.
In most family law cases, the court will require Mediation. Mediation is a process where the parties sit down with a neutral third party to work on resolving their case without the judge. The parties to a case may resolve all issues, some of their issues, or none of their issues at Mediation. Issues not resolved at Mediation will be dealt with by the court at a final hearing or trial.
There is usually a cost for Mediation, paid to the Mediator (the neutral third party.)
If the other party serves you with a Supplemental Petition, you may file an Answer without a Counterpetition by using Answer to Supplemental Petition, form 12.903(e). You must file the Answer within 20 days to avoid having a default entered against you. If the clerk enters a default, you may lose your right to participate in certain aspects of the case and may owe extra amounts of support. However, the court will hear from a party who has been defaulted regarding what is in a child’s best interest.
You must file your Answer with the same court where the other party filed the Supplemental Petition and mail the other party a copy of your Answer. The Answer to Supplemental Petition form can be found at https://www.flcourts.org/Resources-Services/Court-Improvement/Family-Courts/Family-Law-Self-Help-Information/Family-Law-Forms)
WHAT TO CONSIDER BEFORE TAKING ACTION?
When you file a Modification action, you are not guaranteed to receive what you have requested. Your request could result in a new time-sharing schedule that you do not like. The child support and alimony that you receive could be reduced. Your child support payment could increase. It is best to speak to an attorney to determine whether you can achieve the result you are seeking.
If you file a Modification action as a result of a decrease in your income, keep making the child support and/or alimony payments required under your current order. The existing order remains in effect unless and until the court issues a new order. Pay as much as you can and pay it in the manner specified by the order. Failure to make your best effort to pay will hurt your argument that new circumstances require a new child support and/or alimony amount and will cause unpaid payments to pile up.
For people who are trying to file a case in family court in Florida, visit the Florida Courts webpage for a self help location in your county.
Florida Courts also has a dedicated site for people who need to file forms themselves. Click here to visit.
You may also find their mobile app helpful. Download the self help mobile app here.