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Florida Supreme Court Relies On, Quotes Rob McNeely in Landmark Child Custody Case (Tallahassee) -- The Florida Supreme Court ruled in late May 2005 that parties seeking to modify a child custody order must meet a two-prong test, not a more difficult--and legally erroneous--three-prong test advanced by several lower courts and criticized by Rob McNeely for years. The ruling came in Wade v. Hirschman, 903 So. 2d 928 (Fla. 2005), and clearly and firmly enunciated the standard for all child custody modifications proceedings in Florida. The supreme court concluded a party seeking to modify child custody must show that a substantial, material change of circumstances has occurred since the previous custody order, and that the child's best interests justify changing custody. The supreme court rejected an additional requirement advanced by the Second and Third District Courts of Appeal that made moving parties prove that not changing custody would be "detrimental" to the child. The Court ruled, "Requiring proof of detriment is inconsistent with this Court’s prior holdings and is not an element of the substantial change test necessary to modify a child custody award." To support its ruling, the Court turned to the chapter on child custody written by The McNeely Law Firm's Rob McNeely in 1998 (and updated every two years since then), "Florida Dissolution of Marriage", published by The Florida Bar: "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." Rob McNeely said he was pleased with the decision. "I am proud the Florida Supreme Court relied on my words and reasoning to support its decision in this landmark ruling on child custody," he said. "Even more important, however, is that the Court reached the right decision for Florida's children and their parents, giving long-needed stability to this vital area of law." Unfortunately, the decision came two years too late for one of The McNeely Law Firm's clients, a father in Miami for whom Mr. McNeely successfully obtained primary custody after a two-day modification trial in 2002. The mother appealed to the Third District Court of Appeal, arguing the erroneous detriment standard. Mr. McNeely, in a spirited oral argument, argued the correct law, but the appellate court followed the wrong law and reversed the custody modification. As demonstrated by the Hirschman decision, Mr. McNeely was right all along. (Not to worry, subsequent events intervened and the father who deserved custody--not for him, but for the child's best interests--now has it.) At issue in the Hirschman case was the standard trial courts should apply to modifications of rotating custody. The Fifth District Court of Appeal had held in an earlier case that modifying rotating custody was akin to an original custody determination, so the substantial change/best interests standard did not apply. If true, substantial instability would have been introduced into many rotating custody decrees, because they would have been easily modified. The difficulty of custody modifications often helps parents try to resolve issues outside of court, which is almost always better for the child. The First District Court of Appeal, however, held the substantial change/best interest test applied to rotating custody modifications, too, not just modifications of primary residential responsibility. The Florida Supreme Court concluded the First District Court of Appeal was right and the Fifth District Court of Appeal was wrong. Modifying rotating custody arrangements requires the same showing of a substantial change in circumstances and that the change would promote the child's best interests as applied in other modification actions. The supreme court then used the case to clearly enunciate the custody modification standard to be used by all trial courts and rejected the "detriment" standard entirely.
Contact: mcneelylaw@comcast.net
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