Since July 1, 2023, a Florida court begins from the presumption that equal time-sharing is in a child’s best interests. The presumption can be rebutted.
Before the 2023 amendments, section 61.13(2)(c)1 provided that there was no presumption for or against either parent, or for or against any specific time-sharing schedule, when creating or modifying a parenting plan.
House Bill 1301 replaced that language. Effective July 1, 2023, the statute creates a rebuttable presumption that equal time-sharing of a minor child is in the best interests of the child. A court must operate under that presumption when creating or modifying a parenting plan.
A parent who believes equal time-sharing is not right for the child must prove that by a preponderance of the evidence, meaning it is more likely than not. This is the lowest civil standard of proof, but the burden falls on the parent opposing equal time-sharing.
Rebutting the presumption doesn’t set aside the best-interest analysis. The court must still evaluate the factors listed in section 61.13(3) and make specific written findings when it creates or modifies a schedule.
Rebutting the presumption doesn’t set the best-interest analysis aside. The court weighs the best interests of the child as they pertain to the schedule itself, and must make specific written findings when it creates or modifies one.
The old rule required a parent seeking modification to show that the substantial and material change in circumstances was unanticipated. The 2023 amendment removed the unanticipated requirement.
The amendment also provides that a parent relocating within 50 miles of the other parent may constitute a substantial and material change permitting modification. The parent seeking the change must still prove the modification is in the child’s best interests; if it is not, the presumption doesn’t apply.
Whether the presumption applies to a petition to modify a parenting plan established before July 1, 2023 is not settled by the text of the amendment. A Florida Bar Journal analysis of the retroactivity question concludes it is not retroactive to existing plans. Anyone modifying an older plan should treat this as contested ground.
The presumption changes what has to be proved, not how. A parent opposing equal time-sharing proves it with a record: schedules, distances, communications, school attendance, incidents and dates. A parent defending equal time-sharing proves it the same way.
Records assembled as the case proceeds carry more weight than recollections compiled in the week before a hearing.
The complete set walks you through the whole process in order, with the records list, the worksheets and the questions to request answers to before you sign a retainer.