Florida Supreme Court defines "substantial change" in child custody modification proceedings.

• Author: Black, Anthony K.

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...