Posted by Nydia Streets of Streets Law in Florida Child Custody

When a parent relocates but their relocation request is denied, can a court create a future parenting plan for if that parent returns to the jurisdiction? These future parenting plans are known as prospective time-sharing, and they are generally disapproved of under Florida family law. This was an issue in the case Jennings v. Fredes, 1D20-3726 (Fla. 1st DCA September 22, 2021).

As part of their divorce proceedings, the parties agreed to a temporary time-sharing order that granted each party pretty equal time-sharing. Soon thereafter, the former wife petitioned for relocation to South Carolina. Her petition was denied, but the parties later agreed the former wife could take the children to South Carolina, although the length of time they would stay there was disputed. When the former wife did not allow the former husband to exercise time-sharing, the former husband filed for relief in the Florida court, and he was awarded majority time-sharing with the children.

The case proceeded to a final hearing, and the court decided to continue the award of majority time-sharing to the former husband, but ordered a conditional time-sharing plan in case the former wife moved back to Florida. Child support was also ordered. The former wife appealed, arguing (1) she was denied due process at the hearing; (2) the court erred in creating a prospective time-sharing plan; and (3) the court incorrectly calculated child support.

The appellate court declined to reverse on the former wife’s argument about due process. She alleged the trial court refused to allow her to call witnesses and did not allow her counsel to fully cross examine a witness. Since the former wife did not provide a transcript of the hearing, the appellate court ruled it was without power or information to reverse the court’s ruling on this ground. Turning to the former wife’s argument about prospective time-sharing, the appellate court agreed this was error. The court held “The trial court abused its discretion by including this provisional award of timesharing. Under section 61.13001(3), Florida Statutes (2020), unless the parents of a minor child agree, a parent seeking to relocate more than fifty miles from their current residence must petition the court for approval. The court must determine at the time of the final hearing whether the relocation is in the child’s best interest.”

As to child support, the former wife contended the court erred when it did not include the former husband’s VA benefits in his income for purposes of calculating child support. The court agreed, holding “As [former husband] properly concedes, the trial court abused its discretion by not including the disability benefits in [former husband’s] monthly gross income. Gross income includes disability payments. See § 61.30(2)(a)4., Fla. Stat. (2020).”

Schedule a meeting with a Miami family law attorney to understand how the law may apply to your case.