Ruling: Trial court erred in allowing modification of time-sharing plan

Divorce and kids

When parents divorce and children are involved, a time-sharing plan comes into play.

This is an opportunity for both parents to work out a schedule that is in the best interest of the child.

However, there are instances when circumstances change and that time-sharing plan must be modified. While there are some cases in which a judge can alter an agreement without notice, such as when it is deemed there is an emergency, there is a legal process in place, governed by Florida law, that must be followed when it comes to modifying a time-sharing plan.

In a recent ruling, the Third District Court of Appeal overturned a Miami-Dade County judge’s order because it determined that an emergency did not exist and that the mother was not provided with proper notice.

In this case, Elizabeth Bronstein filed a petition asking the appellate court to review the trial court judge’s order that essentially resulted in the modification of their parenting plan with regard to their six-year-old child.

The ex-husband, Tal Bronstein, had previously moved from Florida to Colorado and two years after the couple’s divorce asked the court for a modification of the time-sharing plan. However, the trial court denied his request.

He then hired a private investigator to follow his wife who he suspected was spending time with a former boyfriend who she had previously testified she was no longer seeing.

He then filed an unverified motion attaching photographs of the ex-boyfriend on his former wife’s balcony lighting a pipe and smoking from it. There was no evidence establishing what was in the pipe. Neither Elizabeth Bronstein, nor his child, were in the photos and there were no allegations that the former wife was using drugs. The motion was also unverified and didn’t include an affidavit from the investigator.

Still, the ex-husband used the report as the main reason for his claim that there was newly discovered evidence as a fraud on the court and asked the judge to vacate the final judgment denying modification. He did not seek emergency relief.

Five days later, the trial court judge, without hearing testimony or seeing evidence, ordered the child to remain with the father in Colorado, who he had been visiting at the time, until the judge could hold a full evidentiary hearing – which was then scheduled for nearly four months later.

“The order there was tantamount to a temporary modification of the timesharing arrangement as established by the parties’ parenting plan,” the appellate court wrote.

It also noted that there was no evidence or testimony presented to establish the existence of a substantial change of circumstances and that the trial court’s order was “based solely on argument from counsel and unverified allegations from the former husband.”

The court then granted the wife’s petition and instructed that the child be returned to his mother.

It’s important to note that in order for the child to have been allowed to remain with his father, there must have been evidence presented that a true emergency existed and that the child was at risk of being harmed. The father presented nothing to that effect.

Lori Barkus is a Florida Supreme Court Certified Circuit Civil and Family Law mediator and guardian ad litem. She handles matters relating to divorce, custody, child support, paternity, collaborative divorce, adoption, parental rights, and family law and civil mediation

Ms. Barkus is a cum laude graduate of the University of Miami School of Law. She is admitted to practice in Florida, Georgia and the District of Columbia, as well as in the Southern and Middle Districts of Florida and the Eleventh Judicial Circuit Court of Appeals. She is also a member of Leading Women for Shared Parenting.

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