Posted by Nydia Streets of Streets Law in Florida Child Custody

A Florida child custody order must be based on a consideration of the best interest of the child, giving weight to the factors listed in Florida Statute Chp. 61.13. Even if a parent’s behavior causes prejudice to the other parent, that behavior cannot be the basis for a court to order a child custody arrangement. This rule of law is exemplified in the case Parris v. Butler, 2D18-1932 (Fla. 2d DCA 2019).

This case involved the appeal of an order granting the husband’s motion for return of the parties’ children to Florida. The husband alleged that shortly before the parties’ divorce case was filed that the wife took the children to St. Croix and remained there. The husband sought return of the children to Florida, and an emergency hearing was held on his motion. The wife appeared by phone and because her testimony could not be sworn, the court entered its order based only on the husband’s sworn testimony. The court ordered that the children be returned to Florida within 2 weeks and that the husband be granted primary timesharing.

The wife then filed an emergency motion for reconsideration. Thereafter a hearing was held at which the wife appeared with witnesses. After a full hearing, the trial court concluded the children should remain in St. Croix long enough to finish their school year, but that after that, they should be returned to Florida to reside primarily with the husband. The wife appealed this order, arguing it was error for the court not to consider the factors for relocation listed in Florida Statute Chp. 61.13001. She also argued it was error for the court to enter timesharing and injunctive orders without evidence to support them.

As to the wife’s argument about the relocation statute, the appellate court agreed with her, holding “This court has repeatedly stated that even in cases in which relocation is not strictly at issue, the relocation factors should be considered at the earliest opportunity in determining the best interests of the children under section 61.13. [. . .] It is clear from the record that the trial court only considered the relocation factors to the extent that they overlap with the section 61.13 best-interest factors. On review of the evidence presented at the hearings, we are not convinced that the court would have ordered the children's return to Florida had the court considered each of the relocation factors as it is required to do.”

With regard to the wife’s remaining arguments, the appellate court also agreed with her, holding “The section 61.13 best-interest factors expressly considered by the court were found to weigh in neither party's favor. And although the court outlined its rationale as to some factors, it failed to address others, including factors for which unrefuted evidence was presented. As a result, we cannot conclude that the court actually considered all of the best-interest factors and the evidence presented. Further, many of the court's findings are simply unsupported by competent substantial evidence. [. . .] While we understand ‘the need to minimize disruptions to the custodial arrangements for the child[ren],’ we nevertheless must require the trial court to decide the issue of temporary time-sharing ‘based upon the best interests of the child[ren] and not as a sanction for the conduct of either of the parties.’”

If you intend to relocate before or after your petition for divorce is filed in Florida, you should consult with a Miami child custody lawyer before doing so. There may be rules in place that need to be followed in order to avoid a challenge to your custody rights. Schedule a consultation to go over your best options.