According to Florida case law, domestic violence can be used to modify parenting time arrangements as parents engaging in domestic violence in front of their children constitutes an unanticipated, material, and substantial change in circumstances:
Section 61.13(3) provides in relevant part that “[a] determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child.” In other words, “[a] party seeking to modify a parenting plan ‘must show that (1) circumstances have substantially and materially changed since the original custody determination, (2) the change was not reasonably contemplated by the parties, and (3) the child’s best interests justify changing custody.’ “ Meyers v. Meyers, 295 So. 3d 1207, 1211 (Fla. 2d DCA 2020) (alteration in original) (quoting Garcia v. Guiles, 254 So. 3d 637, 640 (Fla. 1st DCA 2018)).
The trial court erred in focusing on the fact that the removal of the children from the former wife’s care had been temporary rather than on the overall nature of the change in circumstances as alleged by the former husband and found by the magistrate.1 Much of the change in circumstances alleged by the former husband and found by the magistrate relates to the domestic violence between the former wife and her boyfriend. Indeed, the law holds that “parents engaging in domestic violence *889 in front of their children constitutes an unanticipated, material, and substantial change in circumstances supporting modification of a timesharing arrangement.” Meyers, 295 So. 3d at 1211 (citing Slaton v. Slaton, 195 So. 3d 1192, 1194 (Fla. 2d DCA 2016), receded from on other grounds by Mallick v. Mallick, 311 So. 3d 243 (Fla. 2d DCA 2020)). “Domestic violence is one of the factors for the trial court’s evaluation of the child’s best interests.” Id. (citing § 61.13(3)(m)). Thus, “[d]omestic violence and other forms of violent behavior are probative matters in a child custody case.” Id. (quoting Waybright v. Johnson-Smith, 115 So. 3d 445, 447 (Fla. 1st DCA 2013)).
It was clear that the former husband was not merely relying on the removal of the children from the former wife during the dependency proceedings but that he was also relying on the circumstances that led to their removal, i.e., the domestic violence between the former wife and her boyfriend. The evidence showed that the former wife and her boyfriend were involved in a domestic violence incident in 2017 that was recorded by the parties’ then five-year-old daughter. This incident led to the dependency proceedings and the children being placed in the former husband’s care in April 2017. The former wife admitted at the evidentiary hearing in August 2019 that she had called the police on her boyfriend “maybe three” times and that she had obtained an injunction against her boyfriend.2 Even though the children were reunified with the former wife in February 2018, the former wife continued her relationship with her boyfriend. In April 2018, the boyfriend called the police and claimed that the former wife attacked him. The police responded to his house, where he was found to be extremely intoxicated. The former husband filed his petition for modification in August 2018, and at that time, the boyfriend was again living with the former wife. After a period of sobriety, the boyfriend had started drinking again, and as part of his dependency case with his child, a safety plan required that he move out of the former wife’s house for thirty days. At the time of the evidentiary hearing in this case in August 2019, the former wife and her boyfriend were living together.
Accordingly, the evidence supported the magistrate’s conclusion that while the removal of the children from the former wife during the dependency proceedings was temporary, a substantial change in circumstances had occurred based on the former wife’s volatile relationship with her boyfriend, which continued beyond the conclusion of the dependency proceedings. Thus, the trial court erred as a matter of law in concluding that no substantial change in circumstances had occurred and in granting the former wife’s exceptions to the magistrate’s report on that basis. We need not address the other arguments raised by the former husband on appeal because the trial court did not cite any other basis in granting the former wife’s exceptions.
See: P.D.V-G. v. B.A.V-G., 320 So. 3d 885 (Fla. Dist. Ct. App. 2021)
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