IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR. Case No. WW DR TTTT N W. N., Respondent & father,

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1 IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR LEE COUNTY, FLORIDA CIVIL ACTION N. P., Petitioner & mother, vs. Case No. WW DR TTTT N W. N., Respondent & father, ORDER DENYING TEMPORARY ORDER FOR RELOCATION This matter having come before the court on Date omitted /2014 on the mother s motion to temporarily permit the relocation of a minor child, it is ordered: 1. Findings The parties are the parents of a minor child, Name and birth date omitted. The child is now 5 years old, soon 6, and he started kindergarten this year. The mother is now 27 years old, the father 35. Neither has any other children. A Final Judgment dated 7/10/2012 ordered a parenting plan for the child. Regarding parental responsibility, the judgment ordered shared parental responsibility for all aspects of the child s life with ultimate responsibility over medical care and education to the mother in the event the parties could not agree on a shared decision in those two aspects of the child s life. Regarding time-sharing, the judgment adopted the mediated agreement of the parties, filed 10/12/2011 and dated 9/30/2011. Their agreement provided for an equal time-sharing schedule. On this temporary motion to relocate a child, the court must consider the factors in (6), regarding a temporary order to relocate, and the factors in (7) & (8), which the court has done, as follows: (6) Temporary order.-- (a) The court may grant a temporary order restraining the relocation of a child, order the return of the child, if a relocation has previously taken place, or order other appropriate remedial relief, if the court finds: 1. That the petition to relocate does not comply with subsection (3); The mother s supplemental petition to relocate filed 4/10/2014 complies with the statute. 2. That the child has been relocated without a written agreement of the parties or without court approval; or The child has not been relocated as the mother requests in her petition. 3. From an examination of the evidence presented at the preliminary hearing that there is a likelihood that upon final hearing the court will not approve the relocation of the child. From the evidence at this temporary hearing, the court is unlikely to approve the relocation. 1

2 (b) The court may grant a temporary order permitting the relocation of the child pending final hearing, if the court finds: 1. That the petition to relocate was properly filed and is otherwise in compliance with subsection (3); and It was properly filed and it complies. 2. From an examination of the evidence presented at the preliminary hearing, that there is a likelihood that on final hearing the court will approve the relocation of the child, which findings must be supported by the same factual basis as would be necessary to support approving the relocation in a final judgment. From the evidence at this temporary hearing, the court is unlikely to approve the relocation after a trial on the petition. (c) If the court has issued a temporary order authorizing a party seeking to relocate or move a child before a final judgment is rendered, the court may not give any weight to the temporary relocation as a factor in reaching its final decision. There is no temporary order allowing the relocation. (d) If temporary relocation of a child is approved, the court may require the person relocating the child to provide reasonable security, financial or otherwise, and guarantee that the court-ordered contact with the child will not be interrupted or interfered with by the relocating party. Not applicable. Findings under (7) and (8): (7) No presumption; factors to determine contested relocation.--a presumption in favor of or against a request to relocate with the child does not arise if a parent or other person seeks to relocate and the move will materially affect the current schedule of contact, access, and time-sharing with the nonrelocating parent or other person. In reaching its decision regarding a proposed temporary or permanent relocation, the court shall evaluate all of the following: (a) The nature, quality, extent of involvement, and duration of the child's relationship with the parent or other person proposing to relocate with the child and with the nonrelocating parent, other persons, siblings, half-siblings, and other significant persons in the child's life. The child has a substantial relationship with both parents. The parties have done a good job implementing the equal time-sharing schedule. The child also has a substantial relationship with the other adults with whom both parents live, in particular, the father s live-in companion because the child has spent more overnights in 2013 and 2014 to date with the father than with the mother and it appears that the child is now living full time in the father s home because the mother, it seems, has already relocated herself to Town omitted, N.C., and taken a job there. (b) The age and developmental stage of the child, the needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child. The child is now 5 years old, soon 6, and the relocation will have a very significant impact on his educational and emotional development. The child has no particular special needs identified in the evidence. The parties separated when the child was 2.5 years old, so the present equal time-sharing 2

3 schedule is the life he has known for the last half of his lifetime. The early years of a child s life are very important to his emotional well-being over the rest of his life. Objections to the father s or the mother s live-in companions having substantial relationships with the child or acting as care givers for the child are misplaced. A child cannot have too many competent and interested care givers. A network of competent and interested care givers provides a child with emotional security. There is no basis for a claim that only parents can be competent and interested care givers to a child. Many parents fail that qualification. Indeed, both of these parents here show some evidence of their own interests and needs taking precedence over the child s best interest and need. The competence and interest of the live-in companions in this case to be care givers for the child was not established by the evidence at this temporary hearing. (c) The feasibility of preserving the relationship between the nonrelocating parent or other person and the child through substitute arrangements that take into consideration the logistics of contact, access, and time-sharing, as well as the financial circumstances of the parties; whether those factors are sufficient to foster a continuing meaningful relationship between the child and the nonrelocating parent or other person; and the likelihood of compliance with the substitute arrangements by the relocating parent or other person once he or she is out of the jurisdiction of the court. The feasibility of the mother s proposed time-sharing schedule was not developed in the evidence at this temporary hearing. It is not clear how she will carry out the schedule she proposes. Her proposal in paragraph 9 of her petition is sketchy, at best. It has no detail or information about the place the child would be exchanged, how he would be exchanged, the number of exchanges during the year, whether the parties can take the time away from their jobs to carry out the transportation, or how the parties would pay for the cost of transportation. It is clear from her proposal that the child will be required to spend considerable hours and days every year in travel back and forth to North Carolina, at considerable expense to the parties. There is no explanation of how the expense would be paid or any estimate of the expense. For a small child, the mother s sketchy proposal will not be sufficient for a meaningful relationship with both parents, or, at least, this is not demonstrated in the evidence. (d) The child's preference, taking into consideration the age and maturity of the child. The child is too young to have a preference one way or the other. (e) Whether the relocation will enhance the general quality of life for both the parent or other person seeking the relocation and the child, including, but not limited to, financial or emotional benefits or educational opportunities. It is not clear how the relocation will enhance the mother s quality of life. She has lived with her live-in companion for 1.5 years. It seems he left for N.C. for a better financial opportunity. The mother is dependent on him for her support. The mother cannot support herself. The child would also be dependent on him for his support. In 2013 and 2014 the mother was employed as an executive assistant with the local office of a national charity. This job required her to work on many evenings attending meetings, etc., and she would arrange with the father for the child to stay overnight with him on these occasions, which were a considerable number of evenings. The mother lost her job with the charity at some time in the winter or spring of The exact date and the exact circumstances of her losing that job, how she lost it and why, are not clear from the 3

4 evidence. She held this job for about 14 months before she did not have it. She testified that she looked for work for some unspecified period of time but she said she can t find a job in Lee County. The loss of the mother s job, it seems, coincided with the mother s live-in companion moving to Town omitted, N.C., to take a job that the mother characterizes as a promotion. The exact work he does, why he had to move, and how this job was a promotion is not clear from the evidence. The mother says she has found a job in Town omitted earning $15.35" an hour working in the payroll department of a college. It is not clear whether she is already working at this job or not. She did not offer a pay stub in evidence. The father believes the mother has already moved to the home of her live-in companion in Town omitted. That would seem to be the situation for some months now. The mother did not testify that she has a local address. She testified that she could not find a local job and that she cannot support herself without the financial assistance of her live-in companion. She took the child to N.C. in 6/2014 for a visit. (f) The reasons each parent or other person is seeking or opposing the relocation. The mother is dependent on her companion for her financial support. The mother cannot support herself. The child would also be dependent on him for his financial support. (g) The current employment and economic circumstances of each parent or other person and whether the proposed relocation is necessary to improve the economic circumstances of the parent or other person seeking relocation of the child. The file reflects that the mother was working for a lawyer when the Final Judgment was entered, earning $400 a week or $20,800 gross per year. The father was then working for a large grocery chain earning about $48,000 gross per year. He is still working for that grocery chain, although he is now on a medical leave from regular work due to a worker s compensation claim in 5/2014. He is also taking college classes since 12/2013 with a goal of obtaining a certificate as an X-ray technician. The details of his injury, his present income, how he supports himself, why he is trying to change his occupation when he apparently has a good job with the grocery chain - none of this is in evidence at this temporary hearing. The mother s present employment, if she is working in N.C., pays her $15.35 an hour or about $32,000 gross per year. The father s present income is not in evidence. However, it seems he is supporting himself with his worker s compensation payments, which are likely much less than his salary with his employer, student loans, and the income of his live-in companion, if she has any. (h) That the relocation is sought in good faith and the extent to which the objecting parent has fulfilled his or her financial obligations to the parent or other person seeking relocation, including child support, spousal support, and marital property and marital debt obligations. The mother seeks the relocation in good faith. The father is in arrears in his financial obligations. Their mediated agreement in 2011 required the father to pay for 100% of day care and insurance costs for the child. The parties agreed to divide the child s uncovered medical bills 50/50. There is no obligation in their agreement for the father 4

5 to pay the mother any monthly child support. The mother testified that the father owes her $1,500" for something, it is not clear what, but perhaps day care expense that she paid or his share of some uncovered medical bills for the child. The mother did not have copies of any bills or other proof of what she paid that she believes he owed. The father did not dispute her testimony. (i) The career and other opportunities available to the objecting parent or other person if the relocation occurs. The father has established himself in a good job with the large grocery chain. However, his leave for a job-related injury, extending now for some months, and his interest in another occupation, an X-ray technician, indicate his good job may not be very secure. Financial insecurity during childhood is the a very great danger for a child. Financial insecurity There is no evidence of any job opportunities for the father in Town omitted, N.C. With a jobrelated injury keeping him out of work for some months, he is not a good candidate for employment with a new employer. His exact physical condition, injury, expected date of maximum medical improvement, etc., are not in evidence. Exactly how he is supporting himself now is also not in evidence. It seems he supports himself with worker s compensation payments, student loans, and his live-in companion s income, if she is working. (j) A history of substance abuse or domestic violence as defined in s or which meets the criteria of s (1)(d) by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation. There is no evidence of either substance abuse or domestic violence. (k) Any other factor affecting the best interest of the child or as set forth in s Considered, the factors in 61.13(3)(a) - (t). (1) The mother s parents reside in the Tampa Bay area. In her petition filed in 2011 she asked to relocate to that area. She withdrew that request in the parties mediated agreement. (2) The father s parents reside in Ohio. The child spent time in their home in the summer of (3) The parties show a high degree of cooperation and ability to make informal changes to the time-sharing schedule for the child s benefit. (4) The mother enrolled the child in a local elementary school, it seems by participating in the local school choice program of the local school board before her live-in companion announced he was moving to Town omitted. The mother did not attempt to withdraw the child from the school she chose. The father approved of that selection. The child is now in kindergarten at that school. It seems he is living full time with the father and his live-in companion. (8) Burden of proof.--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 nonrelocating 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. At this temporary hearing, the mother did not carry her burden of proof. 5

6 2. Ruling The mother s motion for a temporary order permitting her to relocate the child is denied. Done and ordered in Fort Myers, Lee County, Florida, this Copies provided to:, Esq., and, Esq. R. Thomas Corbin, Circuit Judge 6