I have been planning this article since fall 2015, with 100 thoughts toward any number of soapboxes that I might climb upon to raise awareness regarding some perceived transgression or injustice to the men and women we represent every day as attorneys.
Yet, the soapbox I so desperately want to stand on has nothing to do with the men and women we represent as tax, corporate, bankruptcy, real estate, Social Security, elder or even family law attorneys.
My soapbox has everything to do with the unrepresented majority: the children.
More specifically, the children of married or unmarried couples who terminate their adult relationships and then stand by helplessly and watch as their children suffer under a law implemented by our state Legislature.
If the family law arena is not where you wage battle every day, you may not know that we have a problem that affects our state’s children and, in turn, hurts many of the adults who love them.
Florida Statute 61.13(2)(c) states, “The court shall determine all matters relating to parenting and time-sharing of each minor child of the parties in accordance with the best interests of the child and in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act, except that modification of a parenting plan and time-sharing schedule requires a showing of a substantial, material and unanticipated change of circumstances.”
The statute starts off beautifully, because it cites the best interests of the children as the primary focus for the court’s attention. In practice, however, a problem arises when a party tries to modify a parenting plan (the document that details such things as where and with whom the children will live and spend time, how the children will be transported, and which parent has certain rights and responsibilities with and for the children).
In the modification context, the statute requires the court to determine whether there has been a substantial and material change in circumstances that was unanticipated at the time the parties agreed to the plan and would warrant a modification.
What does that mean? Therein lies the problem.
Despite reams of case law handed down by every appellate court in Florida, one thing only remains true: What constitutes an unanticipated, substantial and material change in circumstances is a terribly subjective ruling.
When presented with nearly identical fact patterns, I have found different judges often may rule differently. Moreover, the standard is so high, and the burden of proof so extraordinary, that rarely may any parenting plan be modified to accommodate the unanticipated and ever-changing needs of the children.
Parents generally structure a “deal” for the children as a part of the divorce or paternity action, and, as you can presume, the agreement with respect to the children generally determines whether parents can settle a case and separate themselves from one another.
In reality, in mediation most parents focus more on the termination of their adult relationship than on potential consequences for their children. Many of them, sometimes foolishly, believe they will be able to figure things out for the children by co-parenting as necessary.
Usually at the time of the agreement, parents have not yet lived in what will become the family’s new normal, and they may not have really considered things that could happen through the coming years of their children’s minority.
For example, parents often live together or close to one another when they agree to a parenting plan for transportation, and later move away. As a result, children often are forced to ride in the car for an hour or more in heavy traffic to get to school or to their parents’ homes at the beginning or end of a long day.
Unanticipated difficulties may arise when one parent takes on a new role of caregiver. One parent may not have had to make time for helping with homework, driving carpools, getting children to school and activities on time, making meals and the like.
When the parenting plan goes into effect, unexpected deficiencies in parenting skills may manifest and can have major, and usually very problematic, effects on the children.
All too often, parents use their children as pawns to control or hurt the other parent. I often see such inhumane acts as alienating the children from the other parent, involving the children in conversations they should never have to hear or refusing to agree to extracurricular activities or events which would benefit the children –– if it might also benefit the other parent.
When situations such as those occur, the children suffer from the sins of their parents and the courts are slow to intervene, if they are permitted to intervene at all.
In practice, the “best interests of the child” standard has fallen far by the wayside when it comes to the proof required to modify a parenting plan.
Unfortunately, even continued and egregious animosity between the couple, which negatively impacts the children, is not enough for the court to put the best interests of the children before the statutorily mandated unanticipated substantial and material change in circumstances to modify the parties’ parenting plan.
What if the parents already knew one might move a great distance from the other but had no knowledge of the physical burden it would place on young children? The statutory burden of unanticipation has not been met and the court might not intervene.
What if one parent was the income-earning parent and was known in advance not to have adequate parenting skills? The statutory burden of unanticipation has not been met and the court might not intervene.
And what if the children cannot participate in sports or dance, or receive much needed tutoring because the parents refuse to work with each other? The statutory burden of substantial and material change in circumstances has not been met and the court might not intervene.
The statute contemplates that a separating couple is consciously fighting for the best interests of the children and that whatever they agree to at that time should be maintained for consistency’s sake. In reality, settlements often are reached after 15 or more hours of animosity filled with all of the emotions that drove the parties to separate in the first place. The parties in that mediation are not concentrating on what might happen to their children a year or more down the road.
Even under the best of circumstances, parties who have infants and very young children are not yet thinking of school bells, drive times, healthy meals, bedtime schedules, after-school activities, teenage cell phones or the cost of a high school yearbook.
We attorneys can pay as much attention as possible when helping clients form their parenting plan, but we simply cannot foresee all the potential pitfalls that may face each and every family.
There is a very real need for more flexibility, as well as consideration for the best interests of the children, to allow the court to take action on behalf of our children.
Courts need a true ability to protect the best interests of children without the high bar of demonstrating a substantial, material and unanticipated change in circumstances. Our children need action. Our children need a statutory change and they need our protection.
Want to learn more about this and similar issues and how you can get involved? Join the Family and Children Section of The Jacksonville Bar Association.
Susannah Collins is a partner at Robinson Collins and immediate past-president of the Jacksonville Women Lawyers Association.