Winter Garden, FL asked in Family Law and Civil Rights for Florida

Q: Can I sue the state over the “substantial change in circumstances “ requirement for changing a parenting plan?

Florida requires a petitioner to prove there has been a substantial change in circumstances in order to request a change to a parenting plan.

Is this a substantive due process issue, in that the state should prove a compelling interest in requiring an “extraordinary burden” (Wade v Hirschman) before requiring the petitioner to meet it?

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2 Lawyer Answers
Tami Lane Augen
Tami Lane Augen
  • West Palm Beach, FL
  • Licensed in Florida

A: This is a pretty well settled area of law for a lot of reasons. There should be finality of judgments; however, in family law cases, the court can technically change final judgments via modification until the child is 18. Therefore, there is a legal standard that has been established for pleading, and ultimately proving, that a modification should occur. It appears that you are conflating constitution law when you talk about a compelling state interest. As opposed to the legal standards to state a cause of action. Once you please a cause of action, you have due process in terms of notice and opportunity to be heard to see if you prove the substantial change in circumstances to warrant a modification.

Bruce Alexander Minnick and Charles M. Baron agree with this answer

Charles M.  Baron
Charles M. Baron
  • Civil Rights Lawyer
  • Hollywood, FL
  • Licensed in Florida

A: To add to the wise words of Ms. Lane Augen, the decision you cited, Wade v. Hirschman, is the Florida Supreme Court precedent for the “substantial change in circumstances “ test as the law of the land. Implicit in that decision is that the test does not violate anyone's due process rights.

Bruce Alexander Minnick agrees with this answer

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