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[290 U.S. 264, 266] Messrs. Henry T. Duncan, of Lexington, Ky., and D. L. Hazelrigg, of Frankfort, Ky., for appellant.
Messrs. Robert H. Winn, of Mt. Sterling, Ky., and Clinton M. Harbison, of Lexington, Ky., for appellees Railroad Commission of Kentucky and City of Lexington.
Mr. Joseph A. Edge, of Lexington, Ky., for appellees Mrs. George Hignight et al.
This is a suit in equity, brought by appellant, a Kentucky corporation, in the District Court for Eastern Kentucky, against the state Railroad Commission, certain state officers, and the city of Lexington, to set aside as confiscatory a rate prescribed by the commission for the sale of natural gas distributed by appellant through its pipe lines to consumers in Lexington. The District Court, of three judges, found the rate confiscatory, but refused to enjoin it because of the failure of the appellant to conform to a condition prescribed by the court as prerequisite to granting the injunction. 60 F.(2d) 137. From this decree the present appeal was taken under section 266 of the Judicial Code (28 USCA 380).
The rate to be charged to consumers for gas was not fixed by the franchise contract. It stipulated that the gas supplied by appellant should be at just and reasonable rates, but it provided that, in the first instance, the rates should be designated by appellant in writing, by a rate schedule, filed with the mayor of the city and the Railroad Commission, and that if the city should consider the scheduled rates in excess of just and reasonable rates, it should, within a time specified, institute proceedings before the Railroad Commission to have a just and reasonable rate found and prescribed by it in accordance with the applicable statutes of the state. It was also agreed by the franchise contract that pending proceedings before the commission and 'subsequent proceedings in court,' for the determination of a just and reasonable rate, the appellant should charge its patrons a temporary rate of 50 cents per thousand feet for gas consumed until such time as it should furnish certain increased pipe line service, required by the franchise, after which, and during the proceedings for fixing the rate, the temporary rate should be increased to 60 cents per thousand feet; that pending such proceedings 10 cents of the rate collected from customers, whether 50 cents or 60 cents, should be impounded under the direction of the commission and that at their conclusion 'the Commission or the court' should distribute the impounded fund in accordance with the respective interests in it of appellant and its consumers.
Acting under the provisions of the franchise contract, appellant promulgated a schedule of rates on February 26, 1927, whereupon the city, on March 25, 1927, lodged a complaint with the Railroad Commission assailing the scheduled rates as excessive, and asked that it establish a just and reasonable rate. The commission directed that 10 cents of the temporary rate collected by appellant [290 U.S. 264, 268] from consumers should be impounded with a custodian, appointed by the commission, to receive and hold it pending final determination of the rate. In December, 1927, while the proceeding before the commission was pending, the additional pipe line service required by the franchise was brought into operation and the prescribed temporary rate of 60 cents per thousand was established. Hearings were had and the proceedings continued before the commission, which resulted in its order of October 9, 1929, assailed here, which fixed 45 cents per thousand as a just and reasonable rate and directed appropriate preliminary steps for the distribution of the impounded fund.
The bill in the present suit assails the 45-cent rate as confiscatory and hence an infringement of appellant's immunity under the Fourteenth Amendment, and contains allegations showing that appellant will be irreparably injured if the rate becomes effective. It prays that the respondents be restrained from carrying out the order of the commission, and asks payment over to appellant of the impounded fund. The District Court, by interlocutory injunction, enjoined any further proceedings under the order, and appointed as receiver the custodian of the fund impounded by direction of the commission, to receive and hold, subject to the further order of the court, any fund required to be impounded by the franchise contract subsequent to the order of the commission, and directed appellant, pending the final decree, to pay over to the receiver 10 cents of the 60-cent rate which it should collect from its patrons.
After a hearing and consideration of the evidence, the court found that the 45-cent rate was confiscatory, that a rate of 50 cents would be just and reasonable, and directed that a permanent injunction issue restraining the imposition of the 45-cent rate, but upon the condition that appellant file with the court its consent that the fund impounded from the rate collected in excess of 50 cents per thousand be distrib- [290 U.S. 264, 269] uted to such of its patrons as were entitled to share in it, and that it file with the Railroad Commission and with the Fayette circuit court of Kentucky its written consent that those tribunals make like orders of distribution of all funds in excess of the 50-cent rate which had been impounded and held by their orders. As appellant declined to consent to such distribution of the funds, final decree was entered denying the prayer for a permanent injunction, and directing that the fund impounded with the receiver the distributed among the consumers in proportion to their respective contributions to it.
From this decree appellant alone has appealed. While relying on the findings of the court below that the 45-cent rate is confiscatory, it challenges the finding that the 50-cent rate is just and reasonable, and upon that ground assails the provision of the decree directing distribution to the consumers of the impounded funds made up of collections in excess of the 50-cent rate. It also attacks the denial of a permanent injunction because of appellant's refusal to assent to the distribution of the impounded funds on the basis of that rate. Respondents, while resisting each of these contentions, seek also to sustain the decree denying the injunction on the ground that the 45-cent rate is not confiscatory. See Langnes v. Green, 282 U.S. 531 , 51 S.Ct. 243; United States v. American Railway Express Co., 265 U.S. 425 , 44 S.Ct. 560.
1. There being no diversity of citizenship of the parties to the litigation, the jurisdiction of the District Court to enjoin the 45-cent rate prescribed by the commission is dependent wholly upon the allegations in the bill that the rate assailed was one prescribed by state authority and violates the Fourteenth Amendment because confiscatory. If the rate were fixed by agreement of the parties disclosed by the franchise contract exhibited in the bill, or if it were fixed by the commission, acting as an arbitrator pursuant to agreement of the parties thus deriving its authority from the contract, it is plain that no federal question would [290 U.S. 264, 270] be presented. Georgia Railway & Power Co. v. Decatur, 262 U.S. 432, 438 , 43 S.Ct. 613; Columbus Ry., Power & Light Co. v. Columbus, 249 U.S. 399 , 39 S.Ct. 349, 6 A.L.R. 1648.
But the 45-cent rate was not one prescribed by the contract. By its terms the only effect of the contract upon rates other than the temporary rates in force pending the proceedings before the commission, was to allow the appellant to promulgate a schedule of rates which were to be effective unless, within a time specified, the city should proceed under the laws of the state to have a rate prescribed by public authority. By sections 201e- 2, 201e-5, 201e-11, 201e-14 of the Kentucky Statutes, the Railroad Commission is clothed with the authority of the state to fix rates for the distribution of natural gas by public service companies and is required, upon complaint, to fix just and reasonable rates. It derived its power to fix the rate in the present case, not from the agreement of the parties to this litigation, but from the state Legislature. It was that power which the city called into action by its complaint to the commission that the rates designated in appellant's rate schedule were excessive. The rate, being prescribed by state authority, was, if confiscatory, an infringement of constitutional limitations. The case made by the bill was, therefore, within the jurisdiction of the court below, and called for its determination of the constitutional issue presented.
2. While the jurisdiction of the court was invoked to enjoin the rate because confiscatory, it nevertheless denied any relief from the imposition of the 45-cent rate which it had found to be confiscatory, and directed the return to appellant's patrons of the fund impounded from the collections made in excess of the 50-cent rate. The basis of this action was the finding by the court that the 50-cent rate was just and reasonable, from which it concluded that the appellant was not entitled to retain any amounts collected from its consumers in excess of that rate, and that the [290 U.S. 264, 271] court might, in its discretion, deny any equitable relief since the appellant itself had refused to do equity by consenting to the rate which the court deemed just and reasonable.
The power of a court of equity, in the exercise of a sound discretion, to grant, upon equitable conditions, the extraordinary relief to which a plaintiff would otherwise be entitled, without condition, is undoubted. It may refuse its aid to him who seeks relief from an illegal tax or assessment unless he will do equity by paying that which is conceded to be due. State Railroad Tax Cases, 92 U.S. 575 ; Cummings v. Merchants' National Bank, 101 U.S. 153 ; People's National Bank v. Marye, 191 U.S. 272, 287 , 24 S.Ct. 68; see Norwood v. Baker, 172 U.S. 269, 294 , 19 S.Ct. 187. It may withhold from a plaintiff the complete relief to which he would otherwise be entitled if the defendant is willing to give in its stead such substituted relief as, under the special circumstances of the case, satisfies the requirements of equity and good conscience. City of Harrisonville v. W. S. Dickey Clay Mfg. Co., 289 U.S. 334, 338 , 53 S.Ct. 602. It may prescribe the performance of conditions designed to protect the rights of the parties pending appeal, Hovey v. McDonald, 109 U.S. 150, 157 , 3 S.Ct. 136, or to protect temporarily the public interest while its decree is being carried into effect. See Consolidated Gas Co. v. Newton (D.C.) 267 F. 231, 273; Newton v. Consolidated Gas Co., 258 U.S. 165 , 42 S.Ct. 264.
There are nevertheless some limitations upon the extent to which a federal court of equity may properly go in prescribing such conditional relief, which are inherent in the nature of the jurisdiction which it exercises. District Courts may set aside a confiscatory rate prescribed by state authority because forbidden by the Fourteenth Amendment, but they are without authority to prescribe rates, both because that is a function reserved to the state, and because it is not one within the judicial power conferred upon them by the Constitution. See Newton [290 U.S. 264, 272] v. Consolidated Gas Co., supra; Reagan v. Farmers' Loan & Trust Co., 154 U.S. 362, 397 , 14 S.Ct. 1047; Honolulu Rapid Transit & Land Co. v. Hawaii, 211 U.S. 282 , 29 S.Ct. 55; cf. Keller v. Potomac Electric Power Co., 261 U.S. 428 , 43 S.Ct. 445; O'Donoghue v. United States, 289 U.S. 516 , 53 S.Ct. 740.
This Court has warned that the power to attach conditions to decrees enjoining state rates should be cautiously exercised. Newton v. Consolidated Gas Co., supra, page 175 of 258 U.S., 42 S.Ct. 264. The practical effect of a denial of relief unless the plaintiff will submit to a rate, the reasonableness of which he challenges, is to make the surrender of the right to invoke a distinctively state legislative function the price of justice in the federal courts. The practice would tend to curtail the exercise of that function by action of a court which is itself without authority either to exercise it or to prevent the state from doing so. Such interference with the legislative function is not a proper exercise of the discretionary powers of a federal court of equity. See Honolulu Rapid Transit & Land Co. v. Hawaii, supra.
Such a condition, too, is different from the requirement that a plaintiff shall pay a tax, the amount of which is known and conceded to be due, as a condition of enjoining an excessive tax. In Norwood v. Baker, supra, pages 291, 294 of 172 U.S., 19 S.Ct. 187, this Court pointed out that it would be improper, as a condition of enjoining an unconstitutional special assessment levied by a state authority, to require the plaintiff to tender the amount of such assessment as the court should consider might lawfully be made by state action not yet taken. In Newton v. Consolidated Gas Company, supra, where the Legislature was not in session and had not delegated its power to fix rates, the court sustained a decree enjoining a rate as confiscatory on condition that the plaintiff should impound the rate collected in excess of the confiscatory rate until a specified date, after the assembly of the Legislature, or until a new rate should be fixed by state authority. But the condition was approved [290 U.S. 264, 273] on the ground that its practical effect was to preserve the rights of the parties pending the appeal.
Here the rate-making body, the Railroad Commission, is free to perform its function of fixing a just and reasonable rate as soon as the confiscatory rate is enjoined. The rights of the parties are fully protected both by the provision of the franchise contract and the order of the commission in the proceedings brought to fix the rate, not yet terminated, requiring collections by appellant in excess of the 50-cent rate to be impounded with the custodian. The condition imposed here was not calculated to protect the rights of the parties pending an appeal or further action by the rate-making body. Compliance with it would have involved the surrender of rights asserted by appellant to the funds impounded during a period of more than five years. It would have made impossible any court review of the condition, by appeal or otherwise.
In the circumstances there was no occasion for the court to draw upon its extraordinary equity powers to attach any condition to its decree, and the condition which it did attach was an unwarranted intrusion on the powers of the commission. On the basis of its conclusion that the 45-cent rate was confiscatory, it should have granted appropriate relief, without condition, leaving the commission free to exercise its authority to fix a reasonable rate, and it should have relinquished its control over the impounded fund by directing the receiver to retain it, not as receiver, but in his capacity as custodian appointed by the commission, to await its action in fixing a lawful rate.
3. The court below based its conclusion that the 45-cent rate was confiscatory and that the 50-cent rate would be just and reasonable upon a valuation of the property included in the rate base as of December 31, 1926, a date shortly preceding the effective date of the franchise, which was February 25, 1927. In choosing this date for establishing [290 U.S. 264, 274] the rate base the court acted upon consent of the parties, which in interpreted as requiring it to make as of that date all findings and determinations having a bearing upon the effect of the 45-cent rate and the reasonableness of the 50-cent rate. Although the case was not ready for final decree until September, 1932, and the decree, like the commission's order, spoke for the future as well as for the past, the findings upon which it rested were thus restricted to the date which, for all practical purposes, may be treated as the effective date of the franchise.
In making the findings as of December 31, 1926, the court considered evidence, tending to support them, of earnings and other relevant data during a number of years preceding that date and the year following. In that year the temporary 50-cent rate was in force until December, and until that time no substantial change was shown in the conditions affecting the propriety of the rate fixed by the commission from those prevailing on December 31, 1926. But by December, 1927, the additional pipe line service which, by the franchise, appellant was required to furnish, had been brought into operation and the agreed temporary rate of 60 cents was established. Before that date, the rates paid by appellant for gas purchased for its service from producers had ranged from 10 cents to 20 cents per thousand feet. But the additional pipe line service was procured by contract with another company by which appellant agreed to purchase annually 750 million feet of gas at 40 cents per thousand. As the court considered itself restricted to findings as of December, 1926, it declined to take into account the effect of the increased cost of gas under this contract in making findings as to the propriety of the commission's rate. That restriction also necessarily excluded from consideration the profound changes in values, costs of service, consumption of commodities, and reasonable return on invested capital which we judicially know took place during the period of more than five years while the case was pending before the [290 U.S. 264, 275] commission and the court. See Atchison, Topeka & Santa Fe Ry. v. United States, 284 U.S. 248 , 52 S.Ct. 146.
It is apparent that any decree, to be entered here, upon findings so restricted, must be similarly restricted in its operation and should speak of the validity of the commission's rate only as of a time approximating the date when the franchise became effective. Respondents assail the court's findings that the 45-cent rate was confiscatory and that the 50- cent rate was reasonable, and its findings of value and of the amount to be allowed as a deduction from gross revenue for amortization of the appellant's plants. So far as these objections and others are addressed to the weight of the evidence, we are satisfied that the evidence supports the findings as restricted in the manner already indicated. In view of the limited effect which must be given to any decree to be entered, we have no occasion to consider these objections in any other aspect.
The decree will be reversed and the cause remanded, with instructions to enter a decree enjoining so much of the commission's order as fixes the rate to be charged for gas distributed by appellant to consumers, and relinquishing any further control by the court or its receiver over the impounded fund in his hands by directing that he shall continue to hold such fund, not as receiver, but in his capacity as custodian for the Railroad Commission. The decree will state that it is without prejudice to the right and power of the commission to fix a just and reasonable rate, and that it makes no adjudication of the validity of the 45-cent rate fixed by the commission, so far as it may be affected by changed conditions after February 25, 1927, the effective date of appellant's franchise. Costs, other than in this court, will be awarded in the discretion of the court below.

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Joseph Gufford Family Law Lawyer in Stuart, Fl.
In Florida, What is the Time Limit to Set a Hearing on a Motion to Dismiss or on Any Other Motion in a Civil Action?
If a Pro Se Defendant files a Motion to Dismiss; or if either Party files any other Motion in a Civil Action, what is the time limit from when the Motion is filed to the time that a Hearing must be set by either Party on the Motion before it becomes invalid? Furthermore, is the answer to this question stated anywhere in the Florida Rules of Civil Procedure?
I agree with some of the other commentators on this question. There is no real time limit to call up Motion to Dismiss. Even though the Defendant filed it, I would suggest that it be called up for hearing regardless of whom filed the same. If not, the case will just sit out there in perpetuity and will eventually be dismissed for lack of prosecution.
What is Sole Parental Responsibility?
Why would a court award “Sole Parental Responsibility”? What are Florida Statutes governing this?
Yes I am ProSe no money… she ran me out long ago.
The pertinent statute is 61.13. I have added a link to this answer that should give you more insight. Sole Parental Responsibility is very much the exception in Florida and is generally only ordered in cases where one parent is “unfit” to share in the parenting of the child. It is necessary, before sole responsibility is given to one parent, that the court determine that shared responsibility would be detrimental to the child. The statutory law and the case law on the subject states that the Court must find that shared parental responsibility would be detrimental to the best interests of the child . If the court determines that shared parental responsibility would be detrimental to the child, it may order sole parental responsibility. There are also statutory reasons for a Court to Order Sole Parental Responsibility.
In any event, simply having psychological problems and/or substance abuse problems in the past, depending upon the severity of course, are not sufficient to award the other parent sole parental responsibility. The important thing is to show the court that both issues are being or have been addressed and dealt with through counselling, treatment, etc. Judges see cases involving these issues every day in a variety of different contexts. The key to the future with your child and how the court will address the same is in your hands.
Do I need a Divorce Attorney if I’m in Jail?
MY SON IS BEING SUED FOR DIVORCE. HE IS IN JAIL. SHOULD I HIRE AN ATTORNEY FOR HIM?
Yes, you should almost without question hire an attorney to represent your son’s interests. I don’t know what the Wife has asked for in her Petition, but issues such as parental responsibility, child support alimony and division of assets and debts could be important issues that need to be addressed. Even though he is in prison at this point, it would not be a good thing for him to leave prison with a back breaking Judgment for payment of child support/alimony, etc. that he has no ability to comply with.
What constitutes good grounds for objecting to or moving to strike a notice of non-jury trial filed in a family case?
What constitutes good grounds for objecting to or moving to strike a notice of non-jury trial filed in a family case? No discovery has been conducted and no temporary relief orders have been issued. There has been absolutely no time to prepare the case for trial and without ANY discovery from the other side (who filed the Notice of Non-Jury Trial) and no depositions taken in the matter, it is impossible to adequately prepare the case for trial in such limited time per the notice.
The fact that there has been no temporary relief order or hearing entered is not grounds. However, the failure to comply with mandatory disclosure and/or discovery may be good grounds. Also, the matter must be “at issue”, meaning that the pleadings, Petition, Answer, Counter-petition and Answer to Counter-petition have been filed. Also, there are time limitations associated with noticing the case for trial. I would not venture into this situation without the assistance of a good family law attorney.
Firstly, the purpose of this blog post is not to say that I have any favoritism towards Fathers over Mothers when it comes to whom I represent. I represent both fathers and mothers with equal vigor. So, this post should be equally informative to both. In the marriage context, Father’s have just as many rights to the care, custody and control of their children as mother do. In the non-marriage context, father’s have to establish their status as the legal father of the child, i.e paternity. The term paternity does not mean a “paternity test”. Paternity testing is a method of proving paternity and establishing the legal father/child relationship. The Department of Revenue has added to the public’s confusion. DOR can only establish paternity and child support obligations and enforce the same. However, in their orders, they frequently refer to one parent as being the “custodial” or “non-custodial”. Since DOR can only establish paternity and child support, these designations are very misleading to both parents. In essence, the designation of a custodial or non-custodial parent in a DOR order is meaningless. Until a court that has the capacity to determine custody issues has done so, either parent can petition the court for relief.
In the early days of child custody law, mothers definitely had the upper hand when it came to custody issues. That has changed quite a bit over the last few years as Florida has abandoned concepts of “custody” and made shared parental responsibility the standard in Florida.
What does “Shared Parental Responsibility” mean you might ask? The term is somewhat misleading and has nothing do with who has a child and when. It simply means that both parents are required to “confer” when making “major decisions” affecting the welfare of their children. Did I say “agree”. No, I didn’t. I said “confer”. About what? “Major Decisions”. If you can’t agree on a major decision, then you take it in front of the judge and the judge decides the issue.
The next issue is what type of Parenting Plan is the Court going to enter. You have have heard terms like “primary residence”, “primary custody”, “primary residential responsibility”, etc. Those terms no longer exist under Florida Law because they were misleading and gave the person who had “primary residential responsibility” the belief that they did not have to engage in shared parenting because they had “custody”. All of that changed in 2008 when the Florida Legislature enacted sweeping changes to Florida’s child Custody Laws. Basically, the misleading terms were taken out of the statutes in favor of shared parenting as it was intended to be.
In the 19th Judicial Circuit (Martin, St. Lucie, Okeechobee and Indian River Counties), we are blessed with having a set of Circuit Judges who are very knowledgeable in the changes to Florida law. Fathers and Mothers receive equal treatment and consideration when it comes to parental responsibility and timesharing considerations. However, old myths still haunt the public’s view of child custody. The theory that in order for a father to get majority timesharing that he has to prove the mother to be “unfit” is no longer true. Likewise, the theory that Father’s always get “screwed” in the divorce/child custody context is likewise not true. Mothers need to be aware of this as well because many of them operate under these myths.
In the 2008 legislative session, Florida made sweeping changes in its law regarding how, what was commonly referred to in the public as “custody” or “primary residence” is determined. The term “custody” is not a proper term under Florida law even though it has been used for years by the public, lawyers and judges to describe the parent with whom a child primarily lives. Because of the extensive impact of the new legislative changes, requiring a revision to not only many statutes, but numerous Supreme Court forms, as well as the likely creation of new ones, this law does not go into effect until October 1, 2008.
In its most simplistic explanation, this new law eliminates the terms “custody”, “custodial” and “non-custodial parent”, “primary residence”, “primary residential parent” and “visitation” from Chapter 61 and all other statutes which utilize these arcane and often litigation inducing terms, in exchange for shared parenting plans and time-sharing arrangements.
However, the law goes further by expanding the considerations of shared parental responsibility and in the establishment of parenting plans, which include time-sharing schedules, which are now mandatory.
In Florida, the Court has two initial options when deciding “parental responsibility” issues. The Court can award the parties “Shared Parental Responsibility” or it can award one of the parties “Sole Parental Responsibility”. What is the difference between “Shared Parental Responsibility” and “Sole Parental Responsibility” you might ask? Under the new statute, “Sole Parental Responsibility” means a court-ordered relationship in which one parent makes decisions regarding the minor child. “Shared parental responsibility” means a court-ordered relationship in which both parents retain full parental rights and responsibilities with respect to their child and in which both parents confer with each other so that major decisions affecting the welfare of the child will be determined jointly.
Generally speaking, the courts favor Shared Parental Responsibility. The terms “Primary Physical Residence” or “Primary Residential Responsibility” were in the past considered by many to be the “buzzwords” for what is generally referred to as “custody” in many other states. Those terms have now been deleted from the 2008 version of the statute in favor of the Court now developing a “Parenting Plan” for the child(ren). A “parenting plan” 1 has certain minimum requirements (see footnote) 2 .
itself might imply. In fact, it has nothing whatsoever to do with where a child lives or the amount of time the child spends with one parent or the other 3 . Shared parenting only means that both parents have to confer with each other when making major decisions affecting the welfare of their children and that both parents retain full parental rights and responsibilities. In short, just because parents are breaking up or divorcing each other, it does not mean that they are divorcing their children.
Sole Parental Responsibility is the Exception in Florida Law-On What Basis Can the Court Award Sole Parental Responsibility?
Court must find that shared parental responsibility would be detrimental to the best interests of the child . If the court determines that shared parental responsibility would be detrimental to the child 6 , it may order sole parental responsibility 7 . There are also statutory reasons for a Court to Order Sole Parental Responsibility 8 .
Another option for parents who generally “get along” with each other is “rotating physical custody” (50/50). This type of situation has, in the past, generally not been favored by the courts and the statutes 9 . However, rotating custody is becoming more in “vogue” at the current time 10 .
The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.
The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent.
The length of time the child has lived in a stable, satisfactory environment.and the desirability of maintaining continuity.
The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of either parent with a child.
The moral fitness of the parents.
The mental and physical health of the parents.
Evidence that either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect.
The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties.
The capacity and disposition of each parent to protect the child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child.
In many cases, a consideration of these factors results in awarding custody to the parent who has been the child’s primary caretaker during the marriage/relationship 11 . Although this is often the child’s mother, any preference for the mother strictly on a gender basis is outmoded and has been abrogated by statute and case law on the subject 12 . In many cases, fathers have been proven to be the better parent and have been awarded primary residence.
1 Under the statute, a “parenting plan” is defined as follows: “Parenting plan” means a document created to govern the relationship between the parties relating to the decisions that must be made regarding the minor child and shall contain a time-sharing schedule for the parents and child. The issues concerning the minor child may include, but are not limited to, the child’s education, health care, and physical, social, and emotional well-being. In creating the plan, all circumstances between the parties, including the parties’ historic relationship, domestic violence, and other factors must be taken into consideration. The parenting plan shall be developed and agreed to by the parents and approved by a court or, if the parents cannot agree, established by the court.
(b) Any parenting plan approved by the court must, at minimum, describe in adequate detail how the parents will share and be responsible for the daily tasks associated with the upbringing of the child, the time-sharing schedule arrangements that specify the time that the minor child will spend with each parent, a designation of who will be responsible for any and all forms of health care, school-related matters, other activities, and the methods and technologies that the parents will use to communicate with the child.
Sole parental responsibility of the parties’ child could not be awarded to the former wife absent a specified finding on the record or in the final judgment that shared parental responsibility would be detrimental to the child. Griffin v. Griffin, 665 So. 2d 352 (Fla. Dist. Ct. App. 1st Dist. 1995).
2. The court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child. Evidence that a parent has been convicted of a felony of the third degree or higher involving domestic violence, as defined in s. 741.28 and chapter 775, or meets the criteria of s. 39.806(1)(d), creates a rebuttable presumption of detriment to the child. If the presumption is not rebutted, shared parental responsibility, including visitation, residence of the child, and decisions made regarding the child, may not be granted to the convicted parent. However, the convicted parent is not relieved of any obligation to provide financial support. If the court determines that shared parental responsibility would be detrimental to the child, it may order sole parental responsibility and make such arrangements for visitation as will best protect the child or abused spouse from further harm. Whether or not there is a conviction of any offense of domestic violence or child abuse or the existence of an injunction for protection against domestic violence, or child abuse or the existence of an injunction for protection against domestic violence, the court shall consider evidence of domestic violence or child abuse as evidence of detriment to the child.
a. In ordering shared parental responsibility, the court may consider the expressed desires of the parents and may grant to one party the ultimate responsibility over specific aspects of the child’s welfare or may divide those responsibilities between the parties based on the best interests of the child. Areas of responsibility may include primary residence, education, medical and dental care, and any other responsibilities that the court finds unique to a particular family.
b. The court shall order “sole parental responsibility, with or without visitation rights, to the other parent when it is in the best interests of” the minor child.
6 Trial court could not award wife sole parental responsibility for minor children without first making finding that shared parental responsibility would be detrimental to children. West’s F.S.A. 61.13(2)(b) 2. Schram v. Schram, 932 So. 2d 245 (Fla. Dist. Ct. App. 4th Dist. 2005).
Trial court was required to make a specific finding that shared parental responsibility would have been detrimental to the parties’ child before awarding mother sole parental responsibility. West’s F.S.A. 61.13(2)(b) 2. Evans v. Woodard, 898 So. 2d 230 (Fla. Dist. Ct. App. 2d Dist. 2005).
The trial court abused its discretion when it awarded sole parental responsibility to wife, in divorce proceeding, where there was no finding that shared parental responsibility would be detrimental to the children. West’s F.S.A. 61.13(2)(b)2. Coyne v. Coyne, 895 So. 2d 469 (Fla. Dist. Ct. App. 2d Dist. 2005). Trial courts are required to make a specific finding of detriment to the child before awarding sole parental responsibility. West’s F.S.A. 61.13(2)(b)2. Maslow v. Edwards, 886 So. 2d 1027 (Fla. Dist. Ct. App. 5th Dist. 2004).
Trial court’s failure to make a specific finding that shared parental responsibility would be detrimental to child before awarding sole parental responsibility to mother necessitated remand of paternity action. West’s F.S.A. 61.13(2)(b)2. Maslow v. Edwards, 886 So. 2d 1027 (Fla. Dist. Ct. App. 5th Dist. 2004).
Sole parental responsibility means a court-ordered relationship in which one parent makes decisions regarding the minor child. Fla. Stat. 61.046(15).
Evidence that a parent has been convicted of a felony of the third degree or higher involving domestic violence, as defined in s. 741.28 and chapter 775, or meets the criteria of s. 39.806(1)(d), creates a rebuttable presumption of detriment to the child. If the presumption is not rebutted, shared parental responsibility, including time-sharing with the child, and decisions made regarding the child, may not be granted to the convicted parent. However, the convicted parent is not relieved of any obligation to provide financial support. If the court determines that shared parental responsibility would be detrimental to the child, it may order sole parental responsibility and make such arrangements for time-sharing as specified in the parenting plan as will best protect the child or abused spouse from further harm. Whether or not there is a conviction of any offense of domestic violence or child abuse or the existence of an injunction for protection against domestic violence, the court shall consider evidence of domestic violence or child abuse as evidence of detriment to the child.
The court may order rotating custody if the court finds that rotating custody will be in the best interest of the child.
10 In this author’s opinion, it is more in “vogue” because of Florida’s somewhat onerous child support obligations imposed on the parent who has less than 146(40%) overnight per year. However, for many parents this type of timesharing has worked out beautifully and has allowed the child to continue to have a strong bond with those parents.
(o) The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties.
12 See Fla. Stat. 61.13(2)(c) that provides in the new 2008 version of the statute as follows: There is no presumption for or against the father or mother of the child when creating or modifying the parenting plan.
2. “Florida Statutes and in this district by opinion in Kuutti v. Kuutti, 645 So.2d 80 (Fla. 4th DCA 1994)(en banc). Some of the trial court’s comments lead us to believe that his decision to impose limitations on overnight visitation was based partially on the “tender years” doctrine.
Q: What is a Durable Power of Attorney for Property?
A Durable Power of Attorney for Property (DPA) is a document that allows you (the principal) to give authority to another person (youragent or attorney-in-fact) to make financial/legal decisions and financial transactions on your behalf. It is called “durable” when, by its terms, it remains effective even if the principle becomes mentally incompetent.
Q: Who can serve as attorney-in-fact?
It need not be an attorney: any trusted adult, such as a spouse, partner, relative or friend, can serve as attorney-in-fact. Also, there are several nonprofit agencies that can fill this role. It is always a good idea to name at least one alternate attorney-in-fact to serve in the event that your first choice becomes disabled or dies. Your attorney-in-fact will have broad authority, and it is critical that the person or agency you choose be trustworthy and sensitive to your wishes.
Q: What powers can I give to my attorney-in-fact?
The powers you give your attorney-in-fact can be as limited or as broad as you like, and can include the power to buy property, to invest, to contract, to engage in tax planning, to make gifts, and, very importantly, to plan for government benefits, such as Supplemental Security Income and Medicaid (Medi-Cal in California).
Q: What is a “springing” Durable Power of Attorney?
Ordinarily, a DPA is effective as of the day it is signed and executed. This means that even if you are competent to make your own decisions, your attorney-in-fact will also have the legal authority to act on your behalf and engage in financial transactions.
(1) Except as provided in this section, a power of attorney is exercisable when executed.
(2) If a power of attorney executed before October 1, 2011, is conditioned on the principal’s lack of capacity and the power of attorney has not become exercisable before that date, the power of attorney is exercisable upon the delivery of the affidavit of a physician who has primary responsibility for the treatment and care of the principal and who is licensed to practice medicine or osteopathic medicine pursuant to chapter 458 or chapter 459 as of the date of the affidavit. The affidavit executed by the physician must state that the physician is licensed to practice medicine or osteopathic medicine pursuant to chapter 458 or chapter 459, that the physician is the primary physician who has responsibility for the treatment and care of the principal, and that the physician believes that the principal lacks the capacity to manage property.
(3) Except as provided in subsection (2) and s. 709.2106(4), a power of attorney is ineffective if the power of attorney provides that it is to become effective at a future date or upon the occurrence of a future event or contingency.
Note: Some banks are reluctant to accept a “springing” DPA because of the possible ambiguities involved in deciding when a person is “mentally incompetent.” You should consult with your bank about its requirements for accepting a DPA.
Q: What are the advantages of a Durable Power of Attorney?
A DPA is a relatively easy, inexpensive mechanism for allowing another person to handle your legal and financial affairs. The main advantage for your loved ones is that if you have a DPA in place, your loved ones can avoid having to file a guardianship proceeding, which is extremely costly. Unlike a joint tenancy bank account, which people often use as a management device in the event of incapacity, a DPA does not give your attorney-in-fact legal access for his or her own use. Your attorney-in-fact must use your assets for your benefit. However, sometimes DPA’s are abused by the holder of the same because of the broad grant of powers. So, be careful who you choose.
Also unlike joint bank accounts, a DPA allows you to transfer decision-making power without disrupting your estate plan. When you create a joint tenancy bank account, you not only give your “joint tenant” access to your funds, but on your death, all of the funds in that account will automatically go to the joint tenant by right of survivorship. Assets in a joint tenancy account are not subject to your Will. A Durable Power of Attorney, on the other hand, in no way affects the disposition of your assets upon your death and, in fact, ceases to be effective when the principal dies.
A properly drafted DPA can give you the flexibility to plan for government benefits such as Medicaid. For example, the attorney-in-fact can be given authority to transfer the principal residence to your spouse if you need to be in a nursing home or require government assistance.
Q: What are the disadvantages of a Durable Power of Attorney?
The main disadvantage of a DPA is that it is subject to abuse because there is no ongoing court super-vision of the attorney-in-fact. This differs from a conservatorship or guardianship, under which a conservator is required to submit an ongoing accounting to the court. If the attorney-in-fact abuses his or her authority and acts improperly, a court may step in and take action. However, in many cases, the damage is already done, and it is difficult to undo it. Thus, you should take great care in selecting your attorney-in-fact. Many times, elderly people are taken advantage of by caregivers, maids, home health aids, etc. and give a DPA to them. If this occurs, immediate action needs to be taken to correct the situation. Joe Gufford Attorney has litigated several cases where this has occurred to stop the damage from continuing to accrue. However, the incapacitated person’s estate in one case was literally decimated and it took thousands of dollars to correct the situation. In that particular case, the caregiver called the Department of Children and Families in an attempt to get the incapacitated person’s daughter arrested for elder abuse. The caregiver also took the incapacitated person to an attorney to have them execute a new will. Although it is extraordinary, we were able to get the DPA invalidated and, in the guardianship action, we were able to engage in estate planning so that the incapacitated person’s true wishes as set forth in the valid will were put back into place.
Q: Do I need a lawyer to have a Durable Power of Attorney drafted?
Yes. Although there are “forms” available on the internet and even at your local Staples store, they are often not valid. They are worded broadly and may not succeed in delegating the range of authority you intend. First, a qualified attorney will be familiar with the state-specific requirements for DPA forms. Second, an attorney can draft the DPA to meet your individual needs. Third, since a DPA is subject to abuse, it is a good idea to meet with an attorney to make sure both the principal and attorney-in-fact understand the document and the attorney is assured of the principal’s competency.
Q: How do I execute a Durable Power of Attorney?
An adult must be competent in order to execute a valid DPA. If there is a question regarding competency, it is a good idea to get a doctor’s letter or declaration regarding the principal’s capacity to understand and sign a DPA at the time the document is executed. You must sign your DPA in the presence of two qualified witnesses and a notary public.
For real estate transactions, you will have to file your DPA with a county land records office. To be sure you meet your state’s legal requirements for a DPA, you should consult with a qualified attorney.
What are the Duties of the Agent?
(d) Must create and maintain an accurate inventory each time the agent accesses the principal’s safe-deposit box, if the power of attorney authorizes the agent to access the box.
(d) Cooperate with a person who has authority to make health care decisions for the principal in order to carry out the principal’s reasonable expectations to the extent actually known by the agent and, otherwise, act in the principal’s best interest.
(3) An agent who acts in good faith is not liable to any beneficiary of the principal’s estate plan for failure to preserve the plan.
(4) If an agent is selected by the principal because of special skills or expertise possessed by the agent or in reliance on the agent’s representation that the agent has special skills or expertise, the special skills or expertise must be considered in determining whether the agent has acted with care, competence, and diligence under the circumstances.
(5) Absent a breach of duty to the principal, an agent is not liable if the value of the principal’s property declines.
(6) Except as otherwise provided in the power of attorney, an agent is not required to disclose receipts, disbursements, transactions conducted on behalf of the principal, or safe-deposit box inventories, unless ordered by a court or requested by the principal, a court-appointed guardian, another fiduciary acting for the principal, a governmental agency having authority to protect the welfare of the principal, or, upon the death of the principal, by the personal representative or successor in interest of the principal’s estate. If requested, the agent must comply with the request within 60 days or provide a writing or other record substantiating why additional time is needed and comply with the request within an additional 60 days.
Can I Revoke a Power of Attorney?
(1) A principal may revoke a power of attorney by expressing the revocation in a subsequently executed power of attorney or other writing signed by the principal. The principal may give notice of the revocation to an agent who has accepted authority under the revoked power of attorney.
(2) Except as provided in subsection (1), the execution of a power of attorney does not revoke a power of attorney previously executed by the principal.
742.011 Determination of paternity proceedings; jurisdiction.—Any woman who is pregnant or has a child, any man who has reason to believe that he is the father of a child, or any child may bring proceedings in the circuit court, in chancery, to determine the paternity of the child when paternity has not been established by law or otherwise.
(1) Except as provided in chapters 39 and 63, this chapter provides the primary jurisdiction and procedures for the determination of paternity for children born out of wedlock. If the establishment of paternity has been raised and determined within an adjudicatory hearing brought under the statutes governing inheritance, or dependency under workers’ compensation or similar compensation programs; if an affidavit acknowledging paternity or a stipulation of paternity is executed by both parties and filed with the clerk of the court; if an affidavit, a notarized voluntary acknowledgment of paternity, or a voluntary acknowledgment of paternity that is witnessed by two individuals and signed under penalty of perjury as provided for in s. 382.013 or s. 382.016 is executed by both parties; or if paternity is adjudicated by the Department of Revenue as provided in s. 409.256, such adjudication, affidavit, or acknowledgment constitutes the establishment of paternity for purposes of this chapter. If an adjudicatory proceeding was not held, a notarized voluntary acknowledgment of paternity or voluntary acknowledgment of paternity, which is witnessed by two individuals and signed under penalty of perjury as specified by s. 92.525(2), creates a rebuttable presumption, as defined by s. 90.304, of paternity and is subject to the right of any signatory to rescind the acknowledgment within 60 days after the date the acknowledgment was signed or the date of an administrative or judicial proceeding relating to the child, including a proceeding to establish a support order, in which the signatory is a party, whichever is earlier. Both parents must provide their social security numbers on any acknowledgment of paternity, consent affidavit, or stipulation of paternity. Except for affidavits under seal pursuant to ss. 382.015 and 382.016, the Office of Vital Statistics shall provide certified copies of affidavits to the Title IV-D agency upon request.
(1) The parents jointly are the natural guardians of their own children and of their adopted children, during minority. If one parent dies, the surviving parent remains the sole natural guardian even if he or she remarries. If the marriage between the parents is dissolved, the natural guardianship belongs to the parent to whom sole parental responsibility has been granted, or if the parents have been granted shared parental responsibility, both continue as natural guardians. If the marriage is dissolved and neither parent is given parental responsibility for the child, neither may act as natural guardian of the child. The mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child unless the court enters an order stating otherwise.
So, even if paternity has been established under Florida law, the Mother of the child has custody until such time as the court enters an order stating otherwise. However, depending upon which law enforcement officer you get on any particular day, outcomes may differ. If the Father has the child and is on the birth certificate, the police might just say “take it to court, this is a civil matter” even if there is no order in place regarding child custody (Parental Responsibility). If the Mother has the child and the Father is trying to get the child, the same situation may apply.
Many people believe that if the Department of Revenue has established Paternity and/or child support that such constitutes a custody order. Unfortunately, Department of Revenue child support orders frequently use language that refers to one or the other parent as the “custodial” or “non-custodial parent”. The use of this language is often confusing to the general public, the parents and law enforcement. However, the Department of Revenue is statutorily prevented from adjudicating custody matters. So, what’s the bottom line?
QUESTION:I reside in st lucie county and wish to move to orlando. We have joint custody?i understand it is more 50 miles? can i move Joint custody of 3 kids. oldest is 18, 14,9 years old.
743.07 Rights, privileges, and obligations of persons 18 years of age or older.—(1) The disability of nonage is hereby removed for all persons in this state who are 18 years of age or older, and they shall enjoy and suffer the rights, privileges, and obligations of all persons 21 years of age or older except as otherwise excluded by the State Constitution immediately preceding the effective date of this section and except as otherwise provided in the Beverage Law.
(2) This section shall not prohibit any court of competent jurisdiction from requiring support for a dependent person beyond the age of 18 years when such dependency is because of a mental or physical incapacity which began prior to such person reaching majority or if the person is dependent in fact, is between the ages of 18 and 19, and is still in high school, performing in good faith with a reasonable expectation of graduation before the age of 19.
(3) This section shall operate prospectively and not retrospectively, and shall not affect the rights and obligations existing prior to July 1, 1973.
As to the remaining children, you need to take a look at Fla. Stat. 61.13001. Relocations are very difficult to achieve. You need experienced counsel to assist you with this type of matter. Below is a summary of the statute as well as the case law interpreting the same.
Relocation is an issue that is often addressed either in an initial custody action or after an initial custody order has been established. Florida Statute 61.13001 specifically addresses the issue of relocation. This statute prevents a residential parent from relocating their residence more than 50 miles unless the parties enter into a written agreement before the move or a court approves the relocation. We have successfully prosecuted and defended relocation actions throughout the 19th Judicial Circuit. Read more about the relocation statute and the cases interpreting it here. Relocation.
[a] No Relocation Without Agreement or Court Order. The relocation statute, Florida Statutes Section 61.13001, basically requires that persons designated in the statute obtain court permission to relocate, either by obtaining the court’s ratification of an agreement or by obtaining a court order allowing relocation. The statute was amended in 2008 to reflect changes in statutory terminology that were enacted that year [see 2008 Fla. Laws, ch. 2008-61, § 9; see also § 32.03]. The statute was also amended in 2009 to simplify procedures for obtaining permission to relocate [see [d], below], and to expand the category of persons who must obtain permission to relocate. Under the 2009 amendments, any parent or nonparent who desires to relocate and who has court-ordered rights to maintain the child’s residence or who has court-ordered rights of timesharing with, or access to, the child, must enter into an agreement or obtain a court order allowing the relocation [see Fla. Stat. § 61.13001(1)(c)-(e), (3)]. Previously, only parents and nonparents with whom children resided were required to obtain agreements or court orders allowing them to relocate [see 2009 Fla. Laws, ch. 2009-180, § 4, amending Fla. Stat. § 61.13001(1) (amendments included deletion of Florida Statutes Section 61.13001(1)(a), which defined “change of residence address” as change in child’s address)].
It should be noted that a summary of amendments at the beginning of the pertinent 2009 chaptered law explains that the term “access to” in the relocation statute is a substitute for the term “visitation” [see 2009 Fla. Laws, ch. 2009-180].
A written agreement to the relocation, entered into by the other parent and all other persons entitled to timesharing with, or access to, the child, and court ratification of the agreement [see Fla. Fam. L. R. P. Form 12.950(a), § 32.220].
An ex parte court order that allows relocation based on a lack of timely response by the other parent or any other person who (1) is entitled to timesharing with, or access to, the child; and (2) has been served with a petition to relocate [see Fla. Fam. L. R. P. Form 12.950(a), § 32.220].
A court order that allows relocation following a noticed evidentiary hearing [see Fla. Fam. L. R. P. Form 12.950(i), § 32.228].
The relocation statute applies to temporary and permanent orders that were or are entered on or after October 1, 2009 and that address parenting plans, custody, primary residence, timesharing with, or access to the child [see Fla. Stat. § 61.13001(11)(a)2.]. In addition, the statute applies to any temporary or permanent relocation or proposed relocation as to which an issue arises in a proceeding that (1) was pending on October 1, 2009; and (2) concerns a parenting plan, custody, primary residence, timesharing with, or access to the child [see Fla. Stat. § 61.13001(11)(a)3.]. Finally, the relocation statute applies to orders that were entered before October 1, 2009 if the existing order does not expressly govern relocation of the child [see Fla. Stat. § 61.13001(11)(a)1.]. If an order existing on October 1, 2009 conflicts with the 2009 relocation statute, the statute does not apply to the extent the existing order expressly governs relocation of the child or a change in the principal address of a parent or other person [Fla. Stat. § 61.13001(11)(b)); see also 2009 Fla. Laws, ch. 2009-180, § 4, amending Fla. Stat. § 61.13001(11)].
“Child” means any person who is under the jurisdiction of a state court pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), or who is the subject of any order granting to a parent or other person any right to timesharing, residential care, kinship, or custody as provided under state law [see Fla. Stat. § 61.13001(1)(a)].
“Court” means (1) the circuit court in an original proceeding that has proper venue and jurisdiction in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), (2) the circuit court in the county in which either parent and the child reside, or (3) the circuit court in which the original action was adjudicated [see Fla. Stat. § 61.13001(1)(b)].
“Other person” means an individual (1) with whom the child resides pursuant to court order, but who is not the parent of the child; (2) who has timesharing rights with the child; or (3) who has rights of access to the child [see Fla. Stat. § 61.13001(1)(c)].
“Parent” means (1) any person named as the child’s parent by court order or by express written agreement that is subject to court enforcement, or (2) a person reflected as the child’s parent on a birth certificate and who is entitled to timesharing with or access to the child [see Fla. Stat. § 61.13001(1)(d)].
“Relocation” means a change in the location of the principal residence of a parent or other person as it was at the time of the last order establishing or modifying timesharing, or at the time of filing the pending action to establish or modify timesharing. The change of location must be at least 50 miles from that residence, and must be for at least 60 consecutive days, not including a temporary absence from the principal residence for purposes of vacation, education, or the provision of health care for the child [see Fla. Stat. § 61.13001(1)(e)].
According to a summary of amendments at the beginning of the 2009 chaptered law that contains the revised relocation statute, the term “access to [the child]” is a substitute for the term “visitation with [the child]” [see 2009 Fla. Laws, ch. 2009-180; see also [a], above]. The statute itself does not define “access to” the child.
[c] Requirements of Agreement. Pursuant to the relocation statute as it was amended in 2009 [see [a], above], an agreement that allows relocation by a parent or other person [see [b], above (definitions)] must be in writing and must be signed by the child’s parent or parents and all other persons who are entitled to timesharing with, or access to, the child. [see Fla. Stat. § 61.13001(2)(a)]. The relocation statute does not expressly state that nonparents with whom a child resides pursuant to court order must also agree to relocation by a parent or other person, but logically, such nonparents are included in that group [seeFla. Stat. § 61.13001(1)(c) (definition of “other person”)].
An agreement must (1) reflect the consent of all the signators to the relocation; (2) define a timesharing or access schedule for the nonrelocating parent and each other person who is entitled to timesharing with, or access to, the child; and (3) describe, if necessary, any transportation arrangements related to the timesharing or access schedule [see Fla. Stat. § 61.13001(2)(a)1.-3.].
A written agreement allowing relocation must be ratified by the court [see Fla. Stat. § 61.13001(2)(b)]. No hearing is necessary unless a party to the agreement requests one in writing within 10 days after the date on which the agreement is filed with the court. If a hearing is not timely requested, the court must presume that the relocation is in the best interests of the child and may ratify the agreement without an evidentiary hearing [see Fla. Stat. § 61.13001(2)(b)].
The Florida Supreme Court has approved a form for a written agreement allowing relocation [see Fla. Fam. L. R. P. 12.950a; § 32.220].
The location of the intended new residence, including the state, city, and specific physical address, if known [see § 61.13001(3)(a)1., Fla. Stat.].
The mailing address of the intended new residence, although this may be omitted if it is the same as the known physical address [see § 61.13001(3)(a)2., Fla. Stat.].
The home telephone number of the intended new residence, if that number is known [see § 61.13001(3)(a)3., Fla. Stat.].
The date of the intended move or proposed relocation [see § 61.13001(3)(a)4., Fla. Stat.].
A detailed statement of the specific reasons for the proposed relocation, and if one of the reasons is a job offer that has been reduced to writing, the written job offer must be attached to the petition [see § 61.13001(3)(a)5., Fla. Stat.].
A proposed timesharing or access schedule and proposed transportation arrangements that are necessary to effectuate the schedule [see § 61.13001(3)(a)6., Fla. Stat.].
Substantially the following statement, in all capital letters and in the same size type, or larger, as the type in the remainder of the petition [see § 61.13001(3)(a)7., Fla. Stat.]: A RESPONSE TO THE PETITION, OBJECTING TO RELOCATION, MUST BE MADE IN WRITING, FILED WITH THE COURT, AND SERVED ON THE PARENT OR OTHER PERSON SEEKING TO RELOCATE WITHIN 20 DAYS AFTER SERVICE OF THIS PETITION TO RELOCATE. IF YOU FAIL TO TIMELY OBJECT TO THE RELOCATION, THE RELOCATION WILL BE ALLOWED, UNLESS IT IS NOT IN THE BEST INTERESTS OF THE CHILD, WITHOUT FURTHER NOTICE AND WITHOUT A HEARING.
A failure to include in the petition the sixth item listed above a proposed timesharing or access schedule and a proposal for transportation to effectuate the schedule–can have significant adverse consequences. Specifically, failure to include that information renders the petition “legally insufficient” unless (1) a valid order abating, terminating, or restricting timesharing or access exists; or (2) other good cause exists that predates the petition [see § 61.13001(3)(a)6., Fla. Stat.].
If the parent or other person who is seeking to relocate, or the child, is entitled to prevent public disclosure of location information under a public records exemption, the trial court may enter any order necessary to modify the disclosure requirements of the relocation statute, so as to comply with the public records exemption [see Fla. Stat. § 61.13001(4)].
A parent or other person who is seeking to relocate has a continuing duty to update and serve the information provided in the petition when the updated information becomes known to the petitioner [see Fla. Stat. § 61.13001(3)(c)].
[B] Filing and Service of Petition. A parent or other person who has prepared a petition to relocate [see [A], above] must serve the petition on the other parent and any other person who is entitled to timesharing with, or access to, the child [see Fla. Stat. § 61.13001(3)(b)].
If there is a pending court action regarding the child, service of process may be effected according to court rule. Otherwise, service of process must be performed according to Florida Statutes Chapters 48 and 49, or via certified mail, restricted delivery, return receipt requested [Fla. Stat. § 61.13001(3)(b)].
A parent or other person who serves a petition to relocate has a continuing duty to serve updated information when the updated information becomes known to him or her [Fla. Stat. § 61.13001(3)(c)].
[ii] Objections to Relocation. If a parent or other person who desires to relocate with a child serves a petition to relocate on a parent or other person who is entitled to timesharing with, or access to, the child [see [i], above], and the person who is served desires to object to the relocation, he or she must serve a verified answer objecting to the proposed relocation within 20 days after service of the petition. The written objection must include the specific factual basis supporting the objection, and must include a statement of the amount of participation or involvement the objecting party currently has, or has had, in the life of the child [see Fla. Stat. § 61.13001(3)(a)7, (5); see also 2009 Fla. Laws, ch. 2009-180, § 4, amending Fla. Stat. § 61.13001(3), (5)].
If a parent or other person who is served with a petition to relocate fails to object, or objects in an untimely manner and fails to show good cause for the untimely objection, the court must presume that the relocation is in the child’s best interests and that the relocation should be allowed [see Fla. Stat. § 61.13001(3)(d)]. Accordingly, the court must enter an order (1) allowing the relocation, (2) specifying that the order is being entered as a result of the untimely response or failure to respond to the petition, and (3) adopting the timesharing or access schedule and transportation arrangements set forth in the petition. The order may be issued in an expedited manner without an evidentiary hearing [see Fla. Stat. § 61.13001(3)(d)].
If a proposed relocation is uncontested, the parent or other person who is proposing the relocation will not be charged a fee for filing the petition to relocate or for the court’s issuance of an order [see Fla. Stat. § 28.241(1)(b)].
If a parent or other person who is served with a petition to relocate files a timely response in which he or she objects to the relocation, the parent or other person who is proposing the relocation may not relocate, and must proceed to a temporary hearing or trial and obtain the court’s permission to relocate prior to relocating [see Fla. Stat. § 61.13001(3)(d)].
[iii] Priority of Contested Relocation Hearing. An evidentiary hearing or trial on a request for a temporary or permanent order allowing relocation must be accorded priority on the court’s calendar. If a motion seeking temporary relocation is filed, a hearing must be held no later than 30 days after the motion is filed unless good cause exists for scheduling a later hearing. If a notice to set the matter for non-jury trial is filed, the trial must be held no later than 90 days after the notice is filed, unless good cause justifies a later trial date [see Fla. Stat. § 61.13001(10); see also 2009 Fla. Laws, ch. 2009-180, § 4, amending Fla. Stat. § 61.13001(10)].
[iv] No Presumption For or Against Temporary or Permanent Relocation. Like its predecessors, the 2009 relocation statute prohibits the court from applying a presumption for or against a request to relocate, even if the relocation will materially affect a parent or other person’s existing schedule of contact, access, or timesharing [see Fla. Stat. § 61.13001(7); see also 2009 Fla. Laws, ch. 2009-180, § 4; 2008 Fla. Laws, ch. 2008-61, § 9; 2006 Fla. Laws, ch. 2006-245, § 2; 1997 Fla. Laws, ch. 97-242, § 1]. In making a decision as to whether to allow relocation, the trial court must consider statutory factors set forth in the relocation statute [see Fla. Stat. § 61.13001(7); see also [v], below].
Finally, like the 2006 and 2008 versions of the relocation statute, the 2009 version expressly states that the burden of proof is on the parent or other person requesting relocation to establish by a preponderance of the evidence that relocation is in the best interests of the child [see Fla. Stat. § 61.13001(8); see also [vi], below].
The nature, quality, extent of involvement, and duration of the child’s relationship with (1) the parent or other person who is proposing the relocation; (2) the child’s other parent or the child’s parents who is or are not relocating; (3) any nonparent (“other person”) who is entitled to timesharing with, or access to, the child and who is not relocating; (4) any nonparent with whom the child resides pursuant to court order, and who is not relocating; (5) the child’s siblings and half-siblings; and (6) any other significant persons in the child’s life [see Fla. Stat. § 61.13001(7)(a); see also [a]-[b], above (applicability of relocation statute to “parent” and “other person,” and definitions of those terms)].
The age and developmental stage of the child, the needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, including consideration of any special needs of the child [seeFla. Stat. § 61.13001(7)(b)].
The quality and practicality of the proposed substitute contact between the child and the nonrelocating parent, parents, or nonparents, considering specifically (1) the feasibility of preserving the relationship between the child and the nonrelocating parent, parents, or nonparents through substitute arrangements that account for the logistics of contact, access, and timesharing, as well as the financial circumstances of the parties; (2) whether the substitute arrangements are sufficient to foster a continuing, meaningful relationship between the child and the nonrelocating parent, parents, or nonparents; and (3) the likelihood of compliance with the substitute arrangements by the parent or other person who is proposing to relocate after he or she is out of the court’s jurisdiction [see Fla. Stat. § 61.13001(7)(c); see also Fla. Stat. § 61.13001(9)(a); [f], below (specification of modes of contact between child and nonrelocating parent or nonrelocating other person in order granting relocation)].
The child’s preference, considering the age and maturity of the child [see Fla. Stat. § 61.13001(7)(d)].
Whether the relocation will enhance the general quality of life for the parent or other person who is proposing to relocate and the child, including, but not limited to, whether the relocation will enhance the financial circumstances, emotional circumstances, or educational opportunities of the parent or other person and the child [see Fla. Stat. § 61.13001(7)(e)].
The reasons underlying the request for relocation by the petitioner-parent or other person who is seeking relocation, and the reasons that each opposing parent or other person has for objecting to the relocation [see Fla. Stat. § 61.13001(7)(f)].
(1) The current employment and economic circumstances of the parent or other person who is proposing to relocate, as well as the current employment and economic circumstances of the child’s parent or parents who are not relocating, and any other person who is entitled to timesharing with, or access to, the child and who is not relocating; and (2) whether the proposed relocation is necessary to improve the economic circumstances of the parent or other person who is proposing to relocate [see Fla. Stat. § 61.13001(7)(g)].
Whether the parent or other person who is seeking the relocation is doing so in good faith, and the extent to which an objecting parent has fulfilled his or her financial obligations–including child support, spousal support, and marital property and marital debt obligations–to the parent or other person who is seeking relocation [see Fla. Stat. § 61.13001(7)(h)].
The career and other opportunities available to the objecting parent or other person if the relocation is allowed [see Fla. Stat. § 61.13001(7)(i)].
Any history of substance abuse or domestic violence as defined in Florida Statutes Section 741.28 or Florida Statutes Section 39.806(1)(d), by either parent, including the severity of such conduct and the failure or success of any attempts at rehabilitation [see Fla. Stat. § 61.13001(7)(j)].
Any other factor affecting the child’s best interests, or any factor set forth in Florida Statutes Section 61.13 [see Fla. Stat. § 61.13001(7)(k)].
The statutory relocation factors set forth in the 2008 and 2009 versions of the relocation statute are nearly identical to the factors set forth in the 2006 version of the statute, and are similar to some of the factors set forth in the 1997 version of the statute [see 2006 Fla. Laws, ch. 2006-245, § 2; 1997 Fla. Laws, ch. 97-242, § 1]. There are not many district court opinions that applied the previous relocation factors. However, several such appellate opinions do exist. Of those, two held that allowing relocation was improper [see Paskiewicz v. Paskiewicz, 967 So. 2d 277 (Fla. 3d DCA 2007) ; Muller v. Muller, 964 So. 2d 732 (Fla. 3d DCA 2007) ]. Another court held that allowing relocation was proper [see Norris v. Heckerman, 972 So. 2d 1098 (Fla. 1st DCA 2008)].
With regard to the first factor, which requires a trial court to consider “[t]he nature, quality, extent of involvement, and duration of the child’s relationship” with each party and with other persons in the child’s life [see § 61.13001(7)(a), Fla. Stat.], the trial court had found that the mother was more involved in caring for the child as an infant and the father had assumed a greater role when the child was a little older. In addition, the lower court observed that the maternal grandparents in Colorado were not employed and the paternal grandparents in Florida were employed. The Third District held that these facts by themselves did not support a finding that the proposed relocation would improve the nature, quality, extent of involvement, and duration of the child’s relationship with either party or with other persons in the child’s life.
Regarding the second statutory relocation factor, which mandates consideration of the child’s needs and the impact of relocation on the child [see § 61.13001(7)(b), Fla. Stat.], the Third District in Muller related that the trial court had focused almost exclusively on the fact that the child would be cared for by the maternal grandmother in Colorado instead of receiving daycare services in Florida. This fact was insufficient to support relocation under the second factor, the appeals court indicated, because the trial court had not considered the very young age of the child or any other impact the relocation would have on the child’s physical, educational, and emotional development.
In the Third District’s view in Muller, the third statutory factor, which requires determination of the practicality and quality of substitute contact between the child and the noncustodial parent or other person, was not satisfied by the lower court’s conclusory finding that it would be feasible to foster a meaningful relationship between the father and child after the relocation. To the contrary, the appeals court stated, the record clearly showed the hardships and complications of traveling between Florida and the town to which the mother wanted to move–Grand Junction, Colorado. To exercise visitation in Grand Junction, the father would have to travel four hours by air to Denver, which he could not easily afford given his monthly net income of approximately $1,300. Moreover, the record showed that travel to Grand Junction from Denver entailed a four-hour drive. In sum, to have any direct contact with the child the father would be required to take off several days, if not weeks, from work [see Segarra v. Segarra, 947 So. 2d 543, 546 (Fla. 3d DCA 2006) ].
The Muller court held that the trial court had properly found the fourth relocation factor, the child’s preference, to be inapplicable because the child was two years old.
The trial court in Muller had considered the fifth, sixth, and seventh factors in combination [see § 61.13001(7)(e) (whether relocation will enhance parent’s and child’s general quality of life, including whether relocation will enhance financial or emotional circumstances or educational opportunities of both of them, (f) (parent’s reasons for seeking to relocate), (g) (current employment and economic circumstances of parent who desires to relocate, child’s other parent, and any other person who is entitled to timesharing with the child, and whether proposed relocation is necessary to improve economic circumstances of parent who desires to relocate), Fla. Stat.]. The trial court had found that the proposed relocation would enhance the general quality of life for both the mother and the child because the mother would no longer have to work as a store clerk, would spend more time with the child, and would be attending nursing school. However, according to the Third District, the record revealed that the mother did not have any job offer in Colorado and had not applied to any nursing school in Grand Junction. Moreover, during the time the mother had lived in Colorado with the child, the mother had lost her job. Further, there was no evidence that the mother would earn a higher income, work fewer hours, or be in a better position to spend more time with the child. Thus, the trial court had relied on the mother’s hopes and expectations without requiring proof of either employment prospects or educational enrollment to support its findings under the fifth, sixth, and seventh statutory factors [see Cecemski v. Cecemski, 954 So. 2d 1227, 1229 (Fla. 2d DCA 2007) (because mother testified that she had not applied for any jobs in Louisiana, evidence did not support trial court’s finding that quality of life for mother and child would improve there)]; Segarra v. Segarra, [947 So. 2d 543, 546 (Fla. 3d DCA 2006)(evidence that custodial mother did not have job offer in Bryceville, Florida supported trial court’s denial of relocation)];Botterbusch Botterbusch, 851 So. 2d 903, 904 (Fla. 4th DCA 2003) (evidence supported trial court’s finding that quality of life for mother and child would improve because record reflected that mother had accepted job offer with United States Customs Department and would earn more money and work fewer hours in her new position)].
After Muller, the Third District again addressed the relocation statute in Paskiewicz v. Paskiewicz [967 So. 2d 277 (Fla. 3d DCA 2007) ]. In Paskiewicz, the Third District reversed a trial court’s approval of a mother’s request for modification of rotating custody so she could have primary residential custody of the parties’ children in Virginia. The court based its decision on the custodial mother’s failure to show a substantial change in circumstances, and cited its prior decision in Bazan v. Gambone[924 So. 2d 952 (Fla. 3d DCA 2006) ] to support the holding. Specifically, the district court agreed with the father that the mother’s desire to move for financial reasons was not by itself a substantial change in circumstances that warranted a change in the existing custodial arrangement [see Bazan v. Gambone, 924 So. 2d 952 (Fla. 3d DCA 2006) ]. However, citing Section 61.13001(7), the Third District further remarked that if the original custody arrangement had not been a rotating custody arrangement, the mother’s reasons for wanting to move might have been sufficient to justify relocation [see Paskiewicz v. Paskiewicz, 967 So. 2d 277 (Fla. 3d DCA 2007) ; see also [iv], below (discussion about uncertainty regarding requirements for postjudgment order allowing relocation)].
Finally, in Norris v. Heckerman [972 So. 2d 1098 (Fla. 1st DCA 2008)] , the First District Court of Appeal approved a trial court’s decision to allow a custodial wife to relocate to Illinois with the parties’ children pursuant to the factors enumerated in Section 61.13001(7). Although the trial court had not made “certain critical findings regarding several of the statutory factors,” according to the district court, the omission was the result of the parties’ failure to present evidence concerning those factors. Therefore, based on the limited evidence before the trial court, the First District held that the lower court had properly exercised its discretion in granting the mother’s request to relocate [see Norris v. Heckerman, 972 So. 2d 1098 (Fla. 1st DCA 2008) ].
Under the 2006 and 1997 versions of the relocation statute [see 2006 Fla. Laws, ch. 2006-245, § 2; 1997 Fla. Laws, ch. 97-242], as well as under the 2009 and 2008 versions [see 2009 Fla. Laws, ch. 2009-180, § 4; 2008 Fla. Laws, ch. 2008-61, § 9], a trial court deciding whether to allow relocation must consider whether proposed substitute contact between the child and the objecting parent or other person will be adequate “to foster a continuing meaningful relationship” between the child and the nonrelocating parent or other person [see Fla. Stat. § 61.13001(7)(c)]. A conflict that existed under the prior statutes and that remains under the 2009 statute is what constitutes a continuing, meaningful relationship. One appeals court interpreting the 1997 statute held that a continuing, meaningful relationship was to be determined on its own merits, apart from the existing schedule of visitation [see, e.g., Fredman v. Fredman, 917 So. 2d 1038, 1041 (Fla. 2d DCA 2006) ]. In contrast, another appeals court indicated that a court must consider whether substitute visitation would allow the same quantity and quality of visitation as the existing schedule [see Shafer v. Shafer, 898 So. 2d 1053, 1057-1058 (Fla. 4th DCA 2005) ]. Because the meaning of “continuing, meaningful relationship” remains undefined in the 2009 statute [see Fla. Stat. § 61.13001(7)(c)], the conflict in the cases seemingly remains relevant.
Florida Statutes Section 61.13003 provides that a trial court’s determination as to whether to allow a custodial parent to relocate with the parties’ child should not be based solely on the availability or lack of availability of electronic communication as a means of contact between the noncustodial parent and the child [see § 61.13003(6), Fla. Stat.; see also , below (discussion of electronic communications statute)].
A trial court may grant a proposed relocation only if it is in the child’s best interests at the time of the final hearing. This “present-based” analysis involves examining the statutory relocation factors as they relate to the child’s and the parties’ circumstances at the time of the hearing [ Arthur v. Arthur, 35 Fla. L. Weekly S 38,54So. 3d 454, 2010 Fla. LEXIS 41 (Fla. Jan. 14, 2010)] . Thus, a trial court may not properly grant a relocation that will be delayed for an extended time, because the child’s and parties’ circumstances quite possibly will change and the child’s best interests may not be served by relocation at that time [see Arthur v. Arthur, 35 Fla. L. Weekly S 38, 54So. 3d 454, 2010 Fla. LEXIS 41 (Fla. Jan. 14, 2010) (trial court erred in granting relocation that was to occur 20 months later, because any of the statutory relocation factors could change “within the extended time period given by the court before relocation”)]. Instead, a trial court’s decision whether to allow such a relocation must be determined in postjudgment modification proceedings. At the time of those proceedings, the statutory relocation factors must be considered in relation to the then-current circumstances of the child and the parties, and the parent who desires to relocate bears the burden of proving that relocation would be in the child’s best interests as of the time of the modification hearing [ Arthur v. Arthur, 35 Fla. L. Weekly S 38, 54 So. 3d 454, 2010 Fla. LEXIS 41 (Fla. Jan. 14, 2010) ; see also [vi], below (burden of proof); ch. 81, Modification of Parental Responsibility and Timesharing].
[vi] Burden of Proof at Temporary or Permanent Hearing. If a response containing an objection to relocation is filed, the parent or other person who is seeking to relocate may not relocate, and must proceed to a temporary hearing or trial and obtain the court’s permission to relocate [see Fla. Stat. § 61.13001(3)(e); see also 2009 Fla. Laws, ch. 2009-180, § 4, amending Fla. Stat. § 61.13001(3)]. There is no presumption for or against relocation [see Fla. Stat. § 61.13001(7); see also [iv], above], but the parent or other person who is seeking to relocate has the burden to prove by a preponderance of the evidence that relocation is in the best interests of the child. If the parent or other person satisfies that burden of proof, the burden then shifts to the parent or nonparent who has objected to show by a preponderance of theevidence that the proposed relocation is not in the child’s best interests [see Fla. Stat. § 61.13001(8); see also 2009 Fla. Laws, ch. 2009-180, § 4, amending Fla. Stat. § 61.13001(8)].
The 2009 relocation statute amendments did not clarify the standard for modification to allow relocation [see 2009 Fla. Laws, ch. 2009-180, § 4, amending Fla. Stat. § 61.13001]. However, other 2009 parenting legislation mandates that a petitioner for modification of a parenting plan or timesharing schedule show a substantial, material, and unanticipated change of circumstances [see 2009 Fla. Laws, ch. 2009-180, § 3, amending Fla. Stat. § 61.13(2)(c)]. In addition, the petitioner must establish that modification would be in the child’s best interests [see 2009 Fla. Laws, ch. 2009-180, § 3, amending Fla. Stat. § 61.13(3)].
An appeals court that addressed modification under a pre-2009 version of the relocation statute held that a substantial change in circumstances must be shown to obtain modification of a rotating custody arrangement to allow relocation [see Paskiewicz v. Paskiewicz, 967 So. 2d 277 (Fla. 3d DCA 2007) ].
If a trial court grants a future relocation based on present circumstances, the court improperly shifts the burden of proof from the relocating party to the nonrelocating party, who will be required to show a substantial change in circumstances in later modification proceedings [ Arthur v. Arthur, 35 Fla. L. Weekly S 38, 54 So. 3d 454, 2010 Fla. LEXIS 41 (Fla. Jan. 14, 2010) ; see also ch. 81, Modification of Parental Responsibility and Timesharing].
The required petition to relocate did not comply with statutory requirements pertaining to contents or execution, or was not served in a timely manner [see § 61.13001(6)(a)1., Fla. Stat.; see also [d][i], above (discussing contents, execution, and service of petition to relocate)].
The child has been relocated without written agreement by the required persons or without the court’s approval [see § 61.13001(6)(a)2., Fla. Stat.; see also [a], above (discussing requirement of agreement or court order)].
The evidence presented at the preliminary hearing makes it appear likely that on final hearing, the court will not approve the relocation [see § 61.13001(6)(a)3., Fla. Stat.].
Instead of a temporary order restraining or ordering return of the child, the trial court may order other appropriate relief [Fla. Stat. § 61.13001(6)(a)].
The petition to relocate was properly filed and otherwise complied with the statutory requirements pertaining to contents, execution, and service [see § 61.13001(6)(b)1., Fla. Stat.; see also [d][i], above (discussing contents, execution, and service of petition to relocate)].
The evidence presented at the preliminary hearing makes it appear likely that on final hearing, the court will approve the relocation, and this finding is supported by the same factual basis as would be necessary to support allowing relocation in a final judgment [see § 61.13001(6)(b)2., Fla. Stat.].
If the court issues a temporary order authorizing a parent or other person to relocate with the child before a final judgment is rendered, the court may not give any weight to the temporary relocation as a factor in reaching its final decision concerning the relocation [Fla. Stat. § 61.13001(6)(c)]. In Wraight v. Wraight, 71 So. 3d 139 (Fla. 5th DCA 2011) , the Fifth District Court of Appeal considered a permanent order in which the trial court granted a mother’s request to relocate with the parties’ child to the United Kingdom. The trial court had earlier granted the mother permission to temporarily relocate to the United Kingdom with the child, and the mother had done so. The order permitting permanent relocation contained a number of findings that described the child’s good academic performance and family contacts in the United Kingdom; the order also contained two express findings that another relocation would not be in the child’s best interests. Nonetheless, the Fifth District held that there was no violation of Section 61.13001(6)(c)’s ban on including temporary relocation as a factor in deciding permanent relocation [see Wraight v. Wraight, 71 So. 3d 139 (Fla. 5th DCA 2011) ].
The Fifth District in Wraight also discussed the lack of authority regarding Section 61.13001(6)(c), noting that there is neither case law that interprets Section 61.13001(6)(c) nor legislative history that explains it. Further, the district court described as “odd” the fact that the relocation statute requires a trial court to weigh the same factors in making a temporary decision as the court must weigh in making a permanent relocation decision [see Fla. Stat. § 61.13001(6)(b) (erroneously cited-to by district court as Fla. Stat. § 61.13001(6)(c)); see also Fla. Stat. § 61.13001(7) (relocation factors)]. The Fifth District speculated that perhaps Section 61.13001(6)(c)’s prohibition against considering any temporary relocation in deciding whether to allow permanent relocation is designed to assure that the facts and issues pertinent to a final relocation decision “will be fully examined de novo at the final hearing.” The district court also speculated that Section 61.13001(6)(c) may be designed to temper unfairness that can be perceived by an objecting parent if the custodial parent has been allowed to temporarily relocate with the child and then use evidence of the relocation’s success to gain an advantage over the objecting parent relocation [seeWraight v. Wraight, 71 So. 3d 139 (Fla. 5th DCA 2011) ].
In addition, if temporary relocation of the child is permitted, the court may require the person relocating the child to provide reasonable security, financial or otherwise, and guarantee that court-ordered contact with the child will not be interrupted or interfered with by the relocating parent or other person [Fla. Stat. § 61.13001(6)(d)].
[f] Specification of Contact and Transportation Methods in Order Allowing Temporary or Permanent Relocation. Under the 2009 relocation statute, a trial court that grants a temporary or permanent request to relocate may designate methods of contact between the child and a nonrelocating parent or other person [see Fla. Stat. § 61.13001(9)(a); see also 2009 Fla. Laws, ch. 2009-180, § 4]. More specifically, the court may order contact through access, timesharing, telephone, the Internet, web-cam, and other arrangements that are (1) in the child’s best interests, (2) financially affordable by the parties, and (3) sufficient to ensure that the child has frequent, continuing, and meaningful contact with the nonrelocating parent or other person [see Fla. Stat. § 61.13001(9)(a); see also Fla. Stat. § 61.13001(7)(c); [d][v], above (feasibility of preserving relationships between child and nonrelocating parent or other person as consideration in deciding whether to allow relocation)].
If appropriate, the trial court must specify how the transportation costs will be allocated between the parents and other persons who are entitled to contact, access, or timesharing. The court may also adjust child support after considering the costs of transportation, the respective net incomes of the child’s parents, and the child support guidelines statute [Fla. Stat. § 61.13001(9)(b); see also Ch. 33, Child Support].
A factor in determining whether to allow relocation of the child [see § 61.13001(3)(e)1., Fla. Stat.].
A factor in determining whether the parenting plan or timesharing or access schedule should be modified [see § 61.13001(3)(e)2., Fla. Stat.].
A basis for ordering the temporary or permanent return of the child [see § 61.13001(3)(e)3., Fla. Stat.].
Sufficient cause to order the parent or other person who is seeking to relocate to pay reasonable expenses and attorneys’ fees incurred by the party objecting to the relocation [see § 61.13001(3)(e)4., Fla. Stat.].
Sufficient cause to order the parent or other person who is seeking to relocate to pay reasonable attorneys’ fees and costs, including interim travel expenses, that are incidental to the objecting party’s visitation or securing return of the child [see § 61.13001(3)(e)5., Fla. Stat.].
The other party starts changing their behavior like closing bank accounts, starting situations that may result in domestic violence situations, wanting more time with the children, etc.
It results in additional fighting, arguments and general discord in the family; These fights typically go nowhere other than nonsensical arguments about issues that my not be relevant to the resolution of the case.
The other party may attempt to hide and avoid service of process to delay the action while they move assets or actually take off with the children to another state.
We have had several cases lately where exactly these types of behaviors have occurred. The results have been additional time and expense to the client in either locating the other party for service of process, domestic violence injunctions filed by the other party to get an upper hand in the proceeding or the actual waste and dissipation of marital assets. Another important point to remember is that once a family law case is filed in the 19th Judicial Circuit, the court usually enters what is called a Standing Temporary Domestic Relations Order that is supposed to prevent this type of behavior. It goes into effect on the Petitioner once the case is filed. It goes into effect on the Respondent, once they have been served. Thus, filing the case and getting it served on the other party is of paramount importance.