Posted by Nydia Streets of Streets Law in Florida Child Custody
When a parent fails to timely object to a petition for relocation, does the burden of proof as to the best interest of the children shift to the non-relocating parent? This question was answered in the appellate case Sanabria v. Sanabria, 3D17-1821 (Fla. 3d DCA February 20, 2019).
The parties entered a marital settlement agreement in 2013 which provided for shared parental responsibility and timesharing. In 2017 the former wife filed a petition for relocation requesting to move from Miami, Florida to Alabama. The former wife’s new husband gained employment in Alabama. The former wife filed her petition which had required language stating that if the former husband failed to object within 20 days in writing, the relocation would be granted.
The former husband hired counsel after being served and before the 20-day deadline, and instead of filing an objection, his counsel filed a motion for additional time to file a responsive pleading. The former wife then filed a motion for relocation, stating the former husband failed to timely object and therefore her petition should be granted. The former husband then filed an objection. A hearing was held on the former wife’s motion, and the court found there was good cause for the former husband’s failure to timely file an objection. Specifically, the court found it was his counsel who erroneously filed the wrong pleading and not the former husband himself. The court then entered an order denying the former wife’s motion and stating the case would proceed to a hearing on the merits.
At the opening of the hearing on the former wife’s petition for relocation, the former wife’s counsel argued the burden was now on the former husband to prove relocation was not in the best interest of the parties’ children because he failed to timely object to the petition. The trial court agreed and ultimately ruled the former wife did not have to present evidence based on the former husband’s failure to object to the petition, and based solely on the pleadings, it granted the former wife’s petition for relocation.
The former husband appealed, arguing it was error for the court to shift the burden of proof to him after it found there was good cause for him failing to timely object to the petition. The appellate court agreed, holding, “Because the trial court improperly shifted the burden of proof to the father, the Order Granting Former Wife's Petition to Relocate is not supported by competent substantial evidence. At the start of the hearing, the mother argued that because the father had failed to timely file a response objecting to the Petition, the presumption that the relocation is in the best interests of the children and that the relocation should be allowed applied at the hearing. The trial court agreed, and ruled that the burden of proof shifted to the father and directed him to proceed first, with the assumption that the mother had proven that the relocation was in the best interests of the children. The father presented his case, and the trial court then heard closing arguments. The trial court reconvened to orally pronounce its ruling on the Petition, and stated that in making its decision, it was "relying on a Petition and not evidence," as the mother was not required to present evidence. Thus, as a result of the trial court's erroneous application of the presumption and burden-shifting, the trial court's order is not supported by competent substantial evidence that the mother's relocation with the children is in the best interest of the children.”
Relocation cases are among the most difficult types of Florida child custody cases to decide. Having a Miami child custody attorney on your side may give you the best chance at defending your side of a relocation case. Schedule a consultation to determine your best defenses and claims.