JAMES M. JANOUSEK, APPELLANT/CROSS-APPELLEE,
v.
NANCY D. JANOUSEK, APPELLEE/CROSS-APPELLANT
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In this Florida family law appeal, the court addressed whether a trial judge properly permitted a custodial parent to relocate minor children after a five-year period. The court held that the trial judge abused his discretion by allowing relocation without a showing of substantial change in circumstances, and vacated the relocation provision.
The trial court abused its discretion by permitting relocation after five years. The restriction that children remain in Live Oak must be maintained, subject only to future modification upon a showing of substantial change in circumstances and that the welfare of the children would be promoted by such modification.
[1] A trial court must make a final determination of child custody at the time of the initial judgment.
[2] A provision in a final judgment of dissolution allowing a primary residential parent to relocate children after a specified period is an abuse of discretion absent eviden…
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Join FLexlaw to unlock all legal intelligence“the trial court is required to make a final determination on that issue at that time.”
Establishes that trial courts must conclusively decide custody matters at the initial hearing, not permit automatic changes based on future dates.
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Join FLexlaw to unlock all legal intelligenceThe trial court awarded the wife primary residential custody of the parties' two minor children and rehabilitative alimony for five years. The final j…
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PER CURIAM.
Both parties raise a number of issues on appeal and cross-appeal, only one of which has merit. The wife was named the primary residential parent of the parties’ two minor children. She was also awarded rehabilitative alimony for five years. The final judgment provided:
During this period the Wife is prohibited from relocating the children from Live Oak so that the Father’s right to frequent contact with his children will not be denied. After said five (5) year period the wife is prohibited from relocating more than 120 miles from Live Oak, Florida.1
The husband contends that the trial judge abused his discretion by permitting the wife to relocate after the five year period. We agree.
When a cause involving child custody is presented to the trial court, “the trial court is required to make a final determination on that issue at that time.” Martinez v. Martinez, 573 So. 2d 37 (Fla. 1st DCA 1990), review denied, 581 So. 2d 1309 (Fla.1991) (emphasis in original). After hearing the evidence presented regarding the children’s best interests, the trial judge found that it was in the children’s best interest that the wife should be the primary residential parent and that the children should remain in Live Oak. This finding is supported by competent substantial evidence. No evidence was presented which would support a determination that a substantial change in circumstances would occur at the end of this five-year period or that such a relocation would promote the welfare of the children.
We vacate the provision in the final judgment of dissolution which permits the wife to relocate after a period of five years. We remand with directions to award the wife primary residential responsibility, with the restriction that the children remain in Live Oak, subject to future modification in accordance with the general law of modification upon a showing of substantial change in circumstances and that the welfare of the children would be promoted by a modification of the custody provision. See Dobbins v. Dobbins, 584 So. 2d 1113 (Fla. 1st DCA 1991), review denied, 598 So. 2d 75 (Fla.1992). In all other respects, the final judgment of dissolution is affirmed.
ERVIN, ZEHMER and BARFIELD, JJ., concur. . During oral argument, counsel for the parties agreed that this provision permitted the wife to relocate the children at the end of the five-year period based on the fact that she was named the primary residential parent.
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Arthur v. Josette A. Arthur, 54 So. 3d 454 (Fla. 2010)…Arthur v. Arthur, 987 So. 2d 212 (Fla. 2d DCA 2008), on the ground that it expressly and directly conflicts with three decisions of the First District Court of Appeal, Sylvester v. Sylvester, 992 So. 2d 296 (Fla. 1st DCA 2008); Janousek v. Janousek, 616 So. 2d 131 (Fla. 1st DCA 1993); and Martinez v. Martinez, 573 So. 2d 37 (Fla. 1st DCA 1990). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. Based on our reasoning below, we quash the Second District’s decision in Arthur to the extent it is inconsiste…1 / 2
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Nolan Michael Sylvester v. Sylvester, 992 So. 2d 296 (Fla. 1st DCA 2008)…onally and psychologically capable of handling a relocation. It is difficult enough to determine the present emotional and psychological needs of a child; it is impossible to speculate what those needs will be in two years. In Janousek v. Janousek, 616 So. 2d 131 (Fla. 1st DCA 1993), this court considered a similar ruling from a trial court and reversed, stating: Both parties raise a number of issues on appeal and cross-appeal, only one of which has merit.... The final judgment provided: During this period…
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Arthur v. Josette A. Arthur, 987 So. 2d 212 (Fla. 2d DCA 2008)…t found relocation to be in the child’s best interest, stating: “The Husband seeks to prevent relocation for legitimate reasons, but in weighing the child’s best interests, relocation is the favored outcome.” The Husband cites Janousek v. Janousek, 616 So. 2d 131 (Fla. 1st DCA 1993), for the proposition that when a child custody issue is presented to the trial court, the court is required to make a final determination on the issue at that time. In Jan-ousek, the wife was named the primary residential parent…1 / 2
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Martinez v. Martinez, 573 So. 2d 37 (Fla. 1st DCA 1990)
- Dobbins v. Dobbins, 584 So. 2d 1113 (Fla. 1st DCA 1991)