FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D2022-3853

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ERIC HARDWICK,

Appellant,

v.

CHRISTIE SMITH,

Appellee.

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On appeal from the Circuit Court for Leon County.

Dawn Caloca-Johnson, Judge.

December 27, 2023

OSTERHAUS, C.J.

Eric Hardwick appeals from a child support modification

order in which the trial court declined to grant retroactive 

modification of his obligation from the date that his minor child 

began living with him full time. We agree that Appellant was 

entitled to retroactive modification and reverse.

I.

The parties are parents to a minor child. In 2006, the parties 

began a timesharing schedule where their child resided primarily 

with Appellee. Appellant had timesharing every other weekend 
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and Tuesday night, as well as owed monthly child support 

payments until the child graduated high school or turned 19.

By agreement of the parties, beginning in March 2020, the 

child began to live with Appellant full time. Appellant, however, 

did not seek modification of the child support award until over a 

year-and-a-half later. When the court decided his petition, it 

awarded him retroactive modification of child support only from 

the date he filed the petition for modification in 2021. The court 

declined to retroactively modify the child support due from the 

date that the child first began living with Appellant on account of 

§ 61.30(11)(c), Florida Statutes, which governs retroactive child 

support modification. The Court concluded that the statute failed 

to authorize retroactive modification under these circumstances 

because it deemed Appellant to be a noncustodial parent. 

II.

We review questions of statutory interpretation de novo. E.g., 

Crapo v. University Cove Partners, LTD, 298 So. 3d 697, 700 (Fla. 

1st DCA 2020). Section 61.30(11)(c) provides that:

A parent’s failure to regularly exercise the timesharing schedule . . . shall be deemed a substantial 

change of circumstances for purposes of modifying the 

child support award. A modification pursuant to this 

paragraph is retroactive to the date the noncustodial 

parent first failed to regularly exercise the court-ordered 

or agreed time-sharing schedule.

§ 61.30(11)(c), Fla. Stat. (emphasis added).

Chapter 61 does not define “custodial” or “noncustodial.” The 

trial court considered Appellant to be a noncustodial parent based 

on the original timesharing arrangement and order in which 

Appellee exercised primary custody. In turn, because Appellee was 

the party who then discontinued exercising court-ordered 

timesharing when the child switched to living with Appellant, the 

court concluded that Appellant was not entitled to retroactive 

modification. 
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In determining which parent is “custodial” versus 

“noncustodial” under § 61.30(11)(c), we consider the parties’ reallife situation and who is caring for the minor child. The party who 

is caring for and providing for the child’s basic everyday needs is 

the “custodial” parent. See Hallberg v. State, 649 So. 2d 1355, 1357-

58 (Fla. 1994) (concluding “that the term ‘custodial,’ absent a 

statutory definition, must be construed in accordance with the 

commonly understood definition as one having custody and control 

of another”; connoting “a duty or obligation to care”); Coleman v. 

State, 485 So. 2d 1342, 1345 (Fla. 1st DCA 1986) (defining 

custodial in a different context in terms of “a guarding or keeping 

safe; care; protection; guardianship.”); see also Custodial, 

Merriam-Webster, https://www.merriam-webster.com/dictionary/

custodial (last visited Dec. 1, 2023) (defining “custodial” as 

“relating to, providing, or being protective care or services for basic 

needs”). 

In this case, Appellant became the custodial parent when the 

child moved in with him and Appellee stopped exercising the courtordered timesharing. Knight v. Knight, 208 So. 3d 1278 (Fla. 1st 

DCA 2017), is instructive on this point. In Knight, the parties 

originally had equal time-sharing of a minor child and neither was 

noncustodial under the terms of the court order. But later, “the 

father failed to exercise his timesharing responsibilities—

essentially yielding full custody to the mother.” Id. at 1278. This 

Court affirmed the retroactive modification ordered by the trial 

court under section 61.30(11)(c) and directed continued retroactive 

application on remand because the father failed to exercise his 

time-sharing. Id. at 1279. 

Here, as with the father in Knight, the mother yielded custody 

of the child. Thus, under Knight and customary definitions of 

“custodial,” she became “the noncustodial parent [who] . . . failed 

to regularly exercise the court-ordered or agreed time-sharing 

schedule.” § 61.30(11)(c), Fla. Stat. Accordingly, Appellant 

qualified under the statute for retroactive modification from the 

date the child began to live with him full time, dependent upon the 

trial court’s determination of the parties’ comparative financial 

abilities. See § 61.30(1)(a), Fla. Stat. (requiring court to “consider[] 

all relevant factors, including the needs of the child or children, 

age, station in life, standard of living, and the financial status and 
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ability of each parent”); § 61.30(11)(b)7, Fla. Stat. (allowing 

consideration of “the obligee parent’s low income and ability to 

maintain the basic necessities of the home for the child”).

III.

We therefore REVERSE and REMAND for the trial court to 

award retroactive modification from the date that Appellee first 

stopped exercising the court-ordered timesharing. 

KELSEY and M.K. THOMAS, JJ., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Daniel Phillips, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Toni C. Bernstein, Sr. 

Assistant Attorney General, Tallahassee for Department of 

Revenue, Child Support Enforcement.