Requirements for Permanent Change of a Child’s Primary Residence

Final orders entered by courts are presumed to be correct, and as a result the court's authority to later modify final orders is restricted. A final order setting a child's primary residence can be modified, but only when there is extraordinary evidence that the reasons for such a change are accurate. This is so because the initial determination is presumed to have been the correct decision at the time it was made, and only new information is relevant for the court to consider.

Two-Pronged Test

The Supreme Court of Florida adopted a two-pronged test for determining whether primary residency can be changed. The parent seeking modification must first show that circumstances have substantially and materially changed since the original custody determination, and second, that the child's best interests justify a change in custody. The substantial change must be one that was not reasonably contemplated at the time of the original judgment.

Unanticipated Substantial Change

The Florida Supreme Court held that the two-part substantial change test applies to modification of all custody agreements and made it clear that all modification of custody cases will have the same standard.

The law as established by the Supreme Court suggests that parents should expect certain changes within a child’s lifetime, but only unanticipated changes should form the basis for a modification. If, for example, the parents divorced when the child was only two years old, his life will certainly have changed by the time he is twelve years old. However, the passage of time and the change that it can bring is like to have been anticipated in the original custody arrangements. There must be something more that was not anticipated. Examples may include a change to a parent’s mental health that was not present at the time of the original decision, a new substance addiction that affects a parent’s ability to effectively raise a child, or abuse or neglect from a previously gentle and conscientious parent.

Child’s Best Interests Control, Not Detriment to the Child

Some courts have said that there must be a finding that maintaining the status quo is a detriment to the child. The Florida Supreme Court, however, has rejected that argument, finding that there is no legal support for that requirement. The child’s best interest is what ultimately determines the appropriateness of a request for modification.

Both wanted to be named the primary residential custodian of the child. The trial court determined that the existing arrangement had failed because the Mother refused to abide by the plan, that it was no longer in the child's best interest to continue the rotating custody arrangement, and that there had been a substantial and material change in circumstances since the entry of the final judgment. The trial court named the Father as primary residential parent.

The Mother appealed the decision, and the appeals court created a rule that applied to split rotating custody cases only, allowing a trial court, in such cases where the rotating custody scheme has failed, to redetermine custody as if it were making an initial custody determination. The rationale was that since there was no primary residential custodian to begin with, the court should be able to make a brand new decision without giving the previous decision the presumption of correctness. The appeals court agreed with the trial court that the Father was the more appropriate primary residential parent under that standard, and so the Mother appealed to the Florida Supreme Court.

The Florida Supreme Court held that the two-part substantial change test applies to modification of all custody agreements. Thus, the Court disapproved the new rule applied to only split rotating custody cases, and made it clear that all modification of custody cases will have the same standard. The original trial court ruling that designated the Father as the primary residential parent was approved by the Florida Supreme Court because the Father had met the difficult burden of the two-prong test.