Posted by Nydia Streets of Streets Law in Florida Child Custody
If a parent wants to relocate while a Florida child custody case is pending, this usually requires the parent to amend pleadings to assert a claim for relocation. If the parent relocates before the relocation claim is decided, and the court ultimately denies the request for relocation, can the parent pivot to requesting a long-distance parenting plan instead that, for example, gives that parent timesharing during school breaks? This was an issue in the case Ward v. Waters, 3D23-178 (Fla. 3d DCA January 3, 2024).
The parents in this paternity case originally resided in Hawaii until the mother moved to Key West, Florida with their daughter without objection from the father. The father eventually moved to Key West and filed a paternity action there, requesting a parenting plan. The parties entered a temporary parenting plan with alternating weekly timesharing. Shortly thereafter, the father filed a petition for relocation to Hawaii. The mother objected and a trial commenced. Before a judgment was entered on the relocation, the father moved back to Hawaii. The court denied the petition for relocation but adopted the father’s proposed long-distance parenting plan which granted him timesharing in Hawaii during school breaks. The mother appealed.
The mother argued that the case Hull v. Hull, 273 So. 3d 1135 (Fla. 5th DCA 2019) required reversal of the long-distance parenting plan. As cited in this appellate opinion, “[In the Hull case], the father petitioned the trial court for relocation. Id. at 1137. As in the instant case, before receiving a ruling, the father unilaterally relocated and then sought timesharing at his new place of residence. Id. The trial court denied relocation, concluding it was not in the best interests of the children. Id. The court further denied long-distance timesharing, finding that the relocation statute did not provide an avenue for granting such relief. Id. On appeal, the Fifth District examined the plain language of the relocation statute and determined it “makes no provision for the trial court to modify time-sharing when the parent’s relocation is not approved because it [is deemed] not in the [child’s] best interest.” Id. at 1138. Since the father had not filed a separate motion for modification, the court further concluded that, ‘[w]hile the trial court pragmatically believed that a long[-]distance parenting plan between the parties would need to be adopted, it correctly recognized in its final judgment that, because it denied [the] petition to relocate, there was no mechanism under section 61.13001 to allow it to grant such relief.’ Id. at 1138–39.”
The appellate court found Hull to be inapplicable because “Unlike the litigants in Hull, the parents in the instant case were not bound by a permanent parenting plan. Instead, they agreed to a timesharing arrangement that was only temporary in duration. This is evidenced by the plain language of the agreement and the fact that both parents sought permanent parenting plans in their respective petitions. Under these circumstances, the trial court was not similarly constrained by the confines of the relocation statute.” However, the appellate court concluded “In the instant case, the timesharing order is devoid of any such finding [that the timesharing ordered is in the best interest of the child], and the factual determinations supporting the denial of relocation arguably negate the tacit conclusion that returning the child to Hawaii for any duration of time serves her best interests. Given these circumstances, the disconnect between the two concurrent rulings is impossible to reconcile without further explanation from the trial court. Accordingly, we reverse that aspect of the parenting plan awarding long-distance timesharing in Hawaii, and we remand for the trial court to render a determination as to whether the proposed timesharing schedule or a different timesharing schedule is in the best interests of the child.”
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