Most folks realize that there are different legal considerations in family cases depending on whether the filing is an initial action or a modification – this information is out there in abundance and is a foundational principle ingrained in attorneys. Unfortunately, there are pitfalls for the wary litigant, especially toward the end of a family case. Child issues are especially problematic.
When a judge makes an initial determination to establish a parenting plan, as is now required in cases involving minor children under Chapter 61 of the Florida Statutes, he weighs the statutory factors and decides what is in the child’s best interest. If the Mother has a tendency to drown a bad day in Crystal Light and vodka when she comes home for the evening or the Father occasionally uses the garage to smoke marijuana and watch adult movies, the consequences are theirs to bear. The court may or may not consider these behaviors, in context, to be detrimental to the minor children and will make a ruling accordingly.
The issues that come before me tend to be more extreme and after the fact, things that should have been brought to light but for some reason were swept under the rug. In many cases, one party has either a reason to get through the initial action quickly – guilt, finances, pending relocation – or just wants the process to be over. This generally occurs midway through the case as the frustration of daily living is increasing and the marital finances are decreasing. Settlement looks better and better. The excessive drinking, illicit drug use, corporal punishment, convicted felon boyfriend, and horrible school district, are suddenly not as important as they once were. DANGER! If not now, perhaps never!!
The best argument that I have heard in defending this type of situation is that although my client knew there was a problem prior to entering into an agreement with the other party that they did not think the problem would get worse. Even on a great day, I just don’t think the argument flies in a modification proceeding. If it was okay for Mom to drink herself to sleep with the kids running around before the divorce, it’s going to be tough arguing it’s not okay after. If Dad’s cousin was the primary babysitter during the previous two years, despite her being on parole for a violent crime, she’s looking good for future babysitting if the Dad still thinks it appropriate. The legal burden changes the second time around and it certainly does not get easier.
I will always be a proponent of settling family law issues, especially as they relate to children; however, prepare from the beginning. Review the statutory facts, all of them, and know your strengths and weaknesses under each factor. Make educated choices based on your unique facts and your attorney’s advice as to how those facts will be used in court, for or against you. Under no circumstances should any parent sign an agreement now expecting it to be changed in the future.