When a child custody order is handed down in a divorce or any other type of custody action, that order is generally meant to stay in place until the child reaches the age of 18 or older. But Florida courts do recognize that circumstances can change over time which will justify modifying a custody order. Whether or not you decide to work with family law attorney in seeking your custody agreement modification is your decision, but you should know that courts place a very high legal and evidentiary burden on parents seeking modifications, thus making it quite difficult for those without an attorney to meet these requirements on their own.

Courts Want to See a “Substantial and Material Change” in Circumstances

The Florida Supreme Court held in the case of Wade v. Hirschman (2005) that a parent seeking a change in a custody order will have to prove that there has been a “substantial and material change” in the circumstances of the current custody situation since the time that the original custody order was handed down. Furthermore, courts will presume the original order is still good and the burden is on the parent seeking modification to prove otherwise, thus that parent must produce the evidence (witnesses, documents, etc) that show the change in circumstance.

What this means is that a parent cannot go to court and simply argue that the original court was wrong in awarding custody to the other parent (if that was the case, you would have wanted to file an appeal of that order). Instead, the court will assume that the original court was correct in awarding custody based on the circumstances known at the time. Instead, a parent will have to argue that the situation has changed “substantially” and “materially” such that the best interests of the child would now be better served by changing the custody order.

How to Prove a Substantial and Material Change

The law does not provide a specific definition of what types of changes in circumstances would qualify as substantial and material, although there is a long list of factors that the court considers in determining what custody situation is in the best interests of the child. Instead, courts rely on what other Florida family law courts have regarded as substantial and material changes in past cases, and a knowledgeable family law attorney will be familiar with these cases and can argue that your situation is analogous to those past cases.

Issues such as the safety of the child, whether the custodial parent is present and willing to take care of a child, drug and alcohol problems, and the medical situations of both parents and child might qualify as a substantial and material change.

To actually demonstrate that the substantial and material change does in fact exist, however, a parent cannot simply tell the court that the change exists, but will need to produce evidence of the change. This evidence can include testimony by witnesses subpoenaed to testify in court as well as medical, school, and criminal reports and records. Again, an experienced family law attorney will be of great use in collecting and presenting the proper evidence to the court supporting your petition for a change in custody.

Legal Help in Your Florida Custody Action

No matter what type of custody issues you are facing in Florida, The Law Offices of Ira M. Marcus, P.A. in Miami can help. Contact our office today to set up a consultation with a trusted and caring family law attorney.

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