When Can You Modify a Custody Agreement in Florida? Understanding “Failure to Exercise Timesharing”

It's a common story I hear from frustrated parents—usually one who's stepping up and doing more than their share—and understandably wondering why the court allows the other parent to still have rights they aren't actively using.

One example that recently came up was from a stepmother who, alongside her husband, has been caring for his child nearly full-time. The child's mother was originally exercising 50/50 custody, but after a temporary written agreement to allow the child to stay with Dad Monday through Friday, things never went back to the court-ordered schedule. Over time, the mother's involvement dwindled, and she began inconsistently picking up the child—sometimes late Saturday, sometimes not at all. Naturally, this family is wondering: Can we modify the custody order? Could we get full custody?

Let's break this down.

The Law: 50/50 Is the Starting Point—But It's Not Set in Stone

Florida courts start from the belief that shared parental responsibility and frequent contact with both parents is ideal. But just because a 50/50 timesharing schedule was ordered doesn't mean it can't be changed. It can—but the standard to modify an existing parenting plan is high.

To file a petition to modify custody in Florida, you must show:

1. A substantial, material, and unanticipated change in circumstances, and
2. That the requested modification is in the best interest of the child.

Does a Parent “Abandoning” Their Timesharing Qualify?

No, not in the legal sense. Failure to consistently use your parenting time is not considered abandonment under Florida law. It does not result in an automatic loss of parental rights. But that doesn't mean it's irrelevant.

Florida Statute §61.13 specifically addresses situations where a parent fails to exercise the timesharing that was ordered. If this happens regularly over a period of time—and the other parent is left handling the responsibilities alone—it can absolutely be used as evidence of a substantial change in circumstances.

This is especially true if:

• The child is now enrolled in school or daycare near the more consistent parent's home,
• The inconsistency is emotionally or academically affecting the child,
• The temporary agreement was informal and has stretched far beyond its original timeframe.

What Happens If You File?

If you file a Petition to Modify the Parenting Plan, the court will look closely at:

• The history of each parent's involvement,
• The reasons for the other parent's inconsistent timesharing,
• Whether the current arrangement is sustainable and in the child's best interest.

The court may revise the plan to reflect what's actually happening in real life. This could result in one parent being designated the majority timesharing parent, or a revised plan with more structure, accountability, or even supervision.

But let's be clear—the court is not likely to eliminate the other parent's timesharing altogether unless there's clear evidence of harm, danger, or serious neglect.

Pro Tip: Document Everything

If you're in this situation, start documenting:

• Which days and times the other parent actually sees the child,
• Cancellations, no-shows, or last-minute changes,
• The impact this is having on the child—emotionally, academically, socially.

Even if you're not ready to file yet, documentation will be key if and when the time comes.

Final Thoughts

Changing custody isn't easy, and it shouldn't be. But it is possible when one parent consistently fails to show up. If you're wondering whether it's time to revisit your parenting plan, we can help you evaluate whether you meet the legal threshold—and more importantly, whether a modification would truly be in your child's best interest.

Need guidance? We offer full representation, DIY coaching, and document prep services. Let's find the option that works for your situation.

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