by Judge Anthony K. Black
In Wade v. Hirschman, 903 So.2d 928 (Fla. 2005), the Florida Supreme Court considered the issue of what test trial courts should use in modifying rotating custody agreements. The court concluded that unless otherwise provided in the final judgment, the two-part “substantial change” test used in Cooper v. Gress, 854 So. 2d 262 (Fla. 1st DCA 2003), applies to the post-dissolution modification of all custody agreements. The Wade opinion may have a particularly dramatic impact in the Second and Third districts where a finding of “detriment” had been required before modification of custody agreements would be allowed. It appears that the holding in Wade effectively overrules the “substantial change” test that had been used in the Second District since its decision in Gibbs v. Gibbs, 686 So. 2d 639 (Fla. 2d DCA 1996), and in the Third District since its decision in Perez v. Perez, 767 So. 2d 513 (Fla. 3d DCA 2000).
The Gibbs Test
The facts in Gibbs were as follows. In May 1994, the father, Raymond Lemoyne Gibbs, sought modification of the parties’ 1987 final judgment of dissolution which provided for shared parental responsibility of the parties’ one son. The final judgment designated the mother as the custodial parent and the father received liberal visitation rights. In his petition for modification, the father acknowledged the “great love and affection” between the mother and the child, but alleged that as the child reached puberty, he needed his father as a male role model. Additionally, the father claimed that the child expressed an interest to be with him and to be active in sports. The evidence at the modification hearing provided that neither the mother nor the father’s household was “perfect,” but both were more than adequate to care for the child.
After considering the minor child's age at the time of the modification hearing, the child’s desire to reside with his father, and the child’s interest in outdoor and sports activities in which the father participated, the trial court concluded that the father, showed by a preponderance of the evidence, there had been a “substantial and material change in circumstances.” Therefore, the trial court transferred custody from the mother to the father. On appeal, however, the Second District concluded that the father failed to establish the “extraordinary burden” necessary to compel a change of custody and reversed and remanded the case to the trial court to enter an order reinstating the mother as the custodial parent of the child.
In Gibbs, the Second District enunciated a test the trial courts must apply in considering a petition for change of custody. First, the petitioning party must plead and prove that there has been a “substantial change” of circumstances since the final judgment. Second, the petitioner must establish that the change of circumstances was of such a magnitude that it would be detrimental for the child to remain with the custodial parent. The Gibbs court referred to this as a “two-prong, extraordinary burden” test.
In Gibbs, Judge Altenbernd spent substantial time and effort tracing the history of the “extraordinary burden” as it has evolved for the past 40 years. The court found that the “detriment” requirement was the “residual influence” of the “tender years” doctrine which was abolished by the legislature in 1982. Under the tender years doctrine, the mother received young children unless she was “unfit.” Judge Altenbernd opined that the detriment requirement was influenced by the doctrine in earlier cases involving a change of custody from the mother.
Once the tender years doctrine was abolished, subsequent cases utilized the requirement of “detriment” in determining when a change of custody would be appropriate. The Gibbs court clearly did not view the “detriment” standard articulated therein as a new test, but rather, a test that had been around in similar application for many years.
The Perez Test
A similar “detriment” requirement was the law in Perez in the Third District. The case involved a 1995 divorce in which the former wife was awarded primary residential responsibility of the couples' three minor children. The marital settlement agreement provided that “neither [p]arty shall remove the permanent residence of the minor children from Dade, Broward, or Palm Beach counties, Florida, without the express written permission of the other [p]arty or in the absence of an order issued by a court of competent jurisdiction.” Subsequently, however, the former wife wanted to move to Park City, Utah, with the three children. The former husband agreed, and the couple executed an agreement, entitled “Addendum and Modification to the Separation and Marital Settlement Agreement,” which was approved by the court and incorporated as an order of the court. While a new home was being constructed in Park City, however, the former husband had a change of heart and petitioned the court to block the move. The trial court entered an order changing primary residential custody of two of the three children, the two boys, to the former husband and allowing the former wife to move to Park City with the minor daughter. On appeal, the Third District reversed in part ordering that the minor boys be given back to the former wife as primary custodian.
Citing the Second District’s opinion in Enyeart v. Stull, 715 So. 2d 320 (Fla. 2d DCA 1998), the Perez court found that the former husband was unable to establish that allowing the minor children to move to Utah would be detrimental to the children, and therefore his petition to modify the order allowing the move should have been denied.
Like the Second District’s opinion in Gibbs, it is doubtful that Perez is still good law.
Factual Background in Wade
As the Wade court pointed out, a trial court determines the initial custody of children in dissolution of marriage proceedings pursuant to the guidelines set forth in F.S. §61.13, (2003). The test is the “best interests of the child,” and in determining what that means, the trial court must consider the criteria set forth in §61.13(3)(a)-(m). Once the initial determination is made, a movant seeking a court order changing that determination faces an “extraordinary burden,” inasmuch as the initial determination is res judicata of the facts and circumstances at the time of the judgment. In Wade, the parties were divorced in October 2000, and entered into a rotating custody arrangement. Subsequently, Carolyn R. Wade, the mother and former wife, petitioned for a modification of the custody arrangement, seeking primary residential responsibility. The father, Michael D. Hirschman, also sought primary residential responsibility. The trial court ruled that the rotating custody plan had failed; that there had been substantial and material changes in circumstances since the entry of the final judgment, and that the rotating custody agreement was no longer in the best interests of the child. After applying the statutory factors delineated in §61.13, the court ordered the parties to have shared parental responsibility with the father as the primary residential parent. The mother appealed. The Fifth District held that the “substantial change” test did not apply, and ruled that once the trial court determined that the rotating custody arrangement failed, it was free to make a “de novo” custody review based upon the criteria set forth in §61.13.
The Fifth District’s ruling was in conflict with the First District’s decision in Cooper v. Gress, 854 So. 2d at 262. The Florida Supreme Court accepted the case in order to resolve the conflict. Based on a similar fact pattern, the Cooper court ruled that a trial court should base modification of rotating custody agreements on the substantial change test rather than undertaking a de novo review based on the criteria established in §61.13. In Wade, the Florida Supreme Court ruled that not only should the Cooper test be applied when addressing motions to modify rotating custody arrangements, but should be applied to all custody arrangements. In so finding, the Florida Supreme Court rejected the Second and Third district’s “detriment” requirement as articulated in the Gibbs and Perez opinions, respectively.
Substantial Change Test
The substantial change test approved by the Wade court is as follows: The movant seeking modification of custody must show both that the circumstances have substantially, materially changed since the original custody determination and that the child's best interests justify changing custody. Furthermore, the substantial change must be one that was not reasonably contemplated at the time of the original judgment.
After reviewing the factual and procedural history, the Florida Supreme Court noted that a final divorce decree is res judicata of the facts and circumstances at the time the judgment became final, and further noted that there is a presumption in favor of the reasonableness of the original decree. Citing Bennett v. Bennett, 73 So. 2d 274 (Fla. 1954), the Florida Supreme Court held that in order to justify disturbing a child custody award, the degree of change in the conditions and circumstances since the date of the previous decree must be of a substantial character.
The Wade court then summarized the state of the statutory and common law. First, it noted that the initial custody of children in dissolution proceedings is done pursuant to the criteria set forth in §61.13, which requires that matters related to the custody of a minor be determined in accordance with the best interests of the child. The Florida Supreme Court then went on to explore the “substantial change” test as it has been applied in various districts around the state. The court cited with approval the approach taken in the First District’s case, Voorhies v. Voorhies, 705 So. 2d 1064 (Fla. 1st DCA 1998), which the court found to be “essentially the test applied in Cooper.”
Next, the Florida Supreme Court explored the “substantial change” test as it has been interpreted in the Second and Third districts. It noted that the Second District explained in Gibbs,
that to meet the second prong of the substantial change test, the trial court must find that a change in custody will so clearly promote or improve the child's well-being that any reasonable parent would understand that maintaining the status quo would be detrimental to the child's overall best interest.
It further noted that the Third District in Perez stated that the best interest prong requires “proof that a child’s continuing residence with the custodial parent would be detrimental to or have an adverse impact on the child.”
The Florida Supreme Court was concerned that the detriment requirement conflicts with §61.13(3), enumerating the best interests of the child, which the trial court is to consider in proceedings dealing with shared parental responsibility. The Wade court cited with approval Judge Cope’s special concurrence in Perez in which he opined:
The detriment-to-the-child standard obviously conflicts with Florida's shared parenting law.... Moreover, it appears to turn the best interests standard on its head. One clearly could demonstrate that a change of custody would promote the child’s best interest, thereby helping the child, while not having evidence that the current situation would be detrimental to the child.
The Florida Supreme Court then applied the “substantial change” test that it articulated to the facts before it in Wade. The court concluded that although the trial court applied the wrong test, it correctly awarded the father primary residential responsibility with shared parental responsibility. Consequently, the court quashed the decision of the Fifth District Court of Appeal and directed the Fifth District to enter an order affirming the trial court's order.
Open Questions After Wade
The precise issue before the Wade court was which test courts should use in proceedings to modify rotating custody agreements. However, it appears that the court wanted to make a broader statement. Writing for the majority, Justice Bell clearly states in the opening paragraph that “the substantial change test as used in Cooper applies to all custody agreements.” Although the issue before the court was narrow, it would appear that those opposing a change of custody under the authority of Wade will argue that other than in the context of rotating custody, the court’s opinion is dicta. However, those seeking a modification under Wade will argue the broad language of the opinion.
Nevertheless, the Wade opinion will inevitability result in an increase in the filing of modification proceedings because of the lowered proof requirements. Additionally, now that the requirement of proving “detriment” appears to have been eliminated, more custody situations will lend themselves to challenge.
Judge Anthony K. Black received his Bachelor of Science degree, magna cum laude, from Arizona State University in 1978, and J.D. degree from the University of Illinois College of Law in 1983. From 1983 to 2002, Judge Black practiced law and was board certified in civil trial. In May 2002, he was appointed to the circuit court.
This column is submitted on behalf of the Family Law Section, Jorge M. Cestero, chair, and Charles Fox Miller, editor.