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Court Cannot Waive the Statutory Requirement That the Parties Must Allege a Substantial Change in Circumstances to Obtain Any Future Modification of Time-Sharing

In the November 2012 the 2nd DCA remanded the case of case of Blackburn v. Blackburn, back to the trial court when the Final Judgment adopting the recommendations of the magistrate erroneously waived the statutory requirement that the parties allege a substantial change in circumstances to obtain any future modification of time-sharing.

At the time of the Final Hearing, the parties who were in a volatile relationship were following a timesharing schedule which called for daily transfers at a police station.  The trial Court found that situation not in the best interest of the children. The Court altered the timesharing to week on week off timesharing hoping for a more stable environment for the children.

The Magistrate also recommended that because the proposed time-sharing schedule may not work well and because neither party was completely settled into their post dissolution lives, the parties could seek a future modification of the timesharing schedule based solely on the best interests of the children without also having to allege a substantial change in circumstances.

The Magistrate recommendations had good intentions but were contrary to Florida Statute 61.13 (3)  A determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child.


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