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Memorandum of Law: Whether former wife should be allowed to relocate the minor child to Texas.

bigstock-Boy-Looking-Out-Train-Window-108511826.jpgFlorida statute 6.13001 governs whether a parent can relocate a child more than 50 miles from his or her principal place of residence at the time of the last order establishing or modifying time sharing. The statute provides that “the parent or other person wishing to relocate has the burden of proving by a preponderance of the evidence that relocation is in the best interest of the child. If that burden of proof is met, the burden shifts to the non-relocating parent or other person to show by a preponderance of the evidence that the proposed relocation is not in the best interest of the child.”

It is very important to note that the sole issue before the court is whether the relocation is in the best interest of the child. The decision is not a rehashing of the time sharing factors contained in Florida statute 61.13. Former wife having the majority time sharing is not a factor, in and of itself, to support a relocation. The court’s sole focus should be the best interest of the child, not the interests of the parents involved – even where petitioners have demonstrated a relocation is in their own best interests. In Berrebbi vs. Clark, the Appellate Court upheld a Trial Court’s decision: “That relocation would not be in the best interest in the children, even though it may be in the best interest of the former wife and her new husband. The court finds that the proposed relocation does not benefit the children inasmuch as there has not been a showing that the proposed relocation would improve the children’s school, family, or even home life.”

In the instant case, the mother’s proposed relocation will not improve the child’s school, family, or home life.  First, the child is receiving straight As and enjoys his school. There is no evidence that the school in Texas would improve his educational experience. Relocating him to an entirely new school just days before the beginning of the school year will only cause him stress and negatively affect him. Second, almost all of the parent’s families live in Florida.  Additionally, these family members have good relationships with the minor child. There is no question that a relocation to Texas will harm the child’s relationship with his family members. Lastly, although the mother claims that she will be able to spend an additional couple of hours with the child, because she will be able to stay at home, that does not necessarily mean his home life will be better. There is no evidence that the child’s current home life is lacking because his mother is employed. But, being moved states away from his father and spending considerably less time with him will certainly negatively affect his home life. Thus, there is no basis that relocation to Texas is beneficial to the minor child in any area of his life. “Ultimately, the concern and a relocation determination is whether the relocation is in the best interests of the child. In fact, courts have held that relocation cannot be based solely upon a finding that it would serve the best interests of the custodial parent – not the minor child.”

Given the multiple variables in a relocation action, the relocation statute provides courts with a fact-specific framework – allowing courts to apply the standard on a case-by-case basis. Therefore, there are very few precedent cases for courts to rely upon in deciding a relocation. However, the facts of the Rossman vs. Profer case are strikingly similar to the instant case. In Rossman, the mother who was initially the majority time sharing parent, petitioned to relocate with her husband and the minor child to Texas. The father was initially ordered, after the parties divorced, to have alternating weekends, holidays, and some weeks in the summer. During the relocation litigation, the mother and her husband accepted employment in Texas as their work in Florida was ending. The mother left the minor child with the father, purchased a home in Texas and rented out her home in Florida. The mother conceded that the minor child maintained a close relationship with the father. The father saw the minor child regularly, participated in the child’s extracurricular activities, and took the child camping and fishing. Importantly, the term the Appellate Court used to describe the fact that the mother was going to stay in Texas even if the court denied the relocation of the child. Lastly, the trial court found that the mother’s substitute time sharing arrangement would not allow the father to maintain a continuing meaningful relationship with the minor child and that the substitute arrangement was not in the minor child’s best interest.

The facts of the instant case seem almost identical to the ones in Rossman. Here, the mother is the majority time sharing parent and is seeking to move to Texas. The father, in this case, has court-ordered time sharing similar to the time sharing the father was originally given in Rossman. In the instant case the father is actually exercising a lot more time sharing than what is court ordered, as opposed to Rossman, where the father was only exercising slightly more than alternating weekends. During this litigation, the mother left the child with the father for even more time sharing than was agreed to. The mother and her husband have already moved into a place in Texas and are renting out their Florida home. The mother’s husband was going to be furloughed in Jacksonville, so he opted to serve active duty and was moved to Texas. The father has a very close relationship with the child and they see each other often. They enjoy the outdoors and playing the saxophone together. Importantly, the mother is going to stay in Texas even if the court denies her request to relocate the child. Lastly, it is clear that the mother’s substitute time sharing arrangement will hinder the father from maintaining a continuing meaningful relationship with the minor child and consequently proposed arrangements are not in the best interest of the minor child.

In conclusion, there is no evidence that the child’s life would improve in any way should the court relocate him to Florida.  The statute is clear that in such instances, relocation must be denied.  Therefore, the court should deny the petition for relocation, and should the mother move to Texas despite the order, the court should modify her time sharing accordingly.