PHILIP JOHN HARDWICK, APPELLANT,
v.
AMY LEE HARDWICK, APPELLEE
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A father appeals a trial court's decision denying his request to bring his four-month-old child back to Florida after the mother relocated to Massachusetts with the child following a marital separation. The appellate court affirmed the trial court's temporary custody order, holding that while section 61.13(2)(d) factors should guide relocation decisions, the statute does not require explicit written findings of fact on the record.
The court held that although the six factors in section 61.13(2)(d) should guide relocation determinations, the statute does not require explicit written findings of fact, and the prior requirement for specific findings under the Mize factors was overruled by the enactment of the statute. The temporary order was affirmed as supported by sufficient evidence.
[1] A trial court is not required to make specific written findings of fact when determining whether a primary residential parent may relocate with a child under section 61.1…
[2] The legislative intent behind section 61.13(2)(d), Florida Statutes, which governs child relocation, is that specific findings of fact are not required for such determina…
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Join FLexlaw to unlock all legal intelligence“Although findings of fact are always helpful to reviewing courts, we will defer to the legislative intent which we glean to be that they are not required here.”
Establishes that while findings aid appellate review, the legislature did not mandate them for section 61.13(2)(d) relocation decisions
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Join FLexlaw to unlock all legal intelligenceThe parties had a short marriage that ended following a physical altercation. The mother took their four-month-old child and returned to her family in…
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KLEIN, Judge.
After a short and stormy marriage, and one particular incident involving a physical altercation, the mother took the parties’ only child, who was four months old, and went back to her family in Massachusetts. After she told the father she was not returning to Florida he filed this action to determine custody and child support and to require that the child be returned to Florida. After an evidentiary hearing the trial court found that it would not be in the child’s best interest to have him brought back to Florida at the present time for purposes of awarding the father temporary custody, and the father appeals.
The father argues that the trial court failed to apply the factors contained in section 61.13(2)(d), Florida Statutes (1997) which provides:
(d) No presumption shall arise in favor of or against a request to relocate when a primary residential parent seeks to move the child and the move will materially affect the current schedule of contact and access with the secondary residential parent. In making a determination as to whether the primary residential parent may relocate with a child, the court must consider the following factors:
1. Whether the move would be likely to improve the general quality of life for both the residential parent and the child.
2. The extent to which visitation rights have been allowed and exercised.
3. Whether the primary residential parent, once out of the jurisdiction, will be likely to comply with any substitute visitation arrangements.
4. Whether the substitute visitation will be adequate to foster a continuing mean ingful relationship between the child and the secondary residential parent.
5. Whether the cost of transportation is financially affordable by one or both parties.
6. Whether the move is in the best interests of the child.
The father contends that the trial court was required to make specific findings in regard to the statutory factors, citing MacConnell v. Cascante, 668 So. 2d 668, 669 (Fla. 4th DCA 1996)(reversing a judgment involving relocation because “the court failed to specifically analyze the so-called Mize factors in the order itself’). Coincidentally, one week before we issued MacConnell, we affirmed a temporary order allowing relocation which did not contain any written findings. Garone v. Parks, 668 So. 2d 307 (Fla. 4th DCA 1996).
Prior to the legislature adopting section 61.13(2)(d), the supreme court had established six factors for courts to consider when determining whether a custodial spouse can relocate in Mize v. Mize, 621 So. 2d 417 (Fla. 1993). Subsequently the supreme court again addressed the subject in Russenberger v. Russenberger, 669 So. 2d 1044 (Fla.1996), and concluded that where a custodial parent seeking to relocate is in good faith, there is a presumption in favor of allowing relocation. The presumption announced in Russenberger prompted the Florida legislature to pass section 61.13(2)(d), which expressly states that there is no presumption, but uses factors which are similar to the Mize factors.
The present case is governed by section 61.13(2)(d), not Mize. Although the legislature has required specific findings of fact for some chapter 61 determinations,1 it did not require them for section 61.13(2)(d). Although findings of fact are always helpful to reviewing courts, we will defer to the legislative intent which we glean to be that they are not required here. MacConnell’s requirement of findings under Mize has been, in effect, overruled by the statute.
We find that there is sufficient evidence to support the temporary order and therefore affirm.
STONE, C.J., and GUNTHER, J., concur. . E.g., alimony, § 61.08(1) and equitable dislri-bution, § 61.075(3).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Flint v. Fortson, 744 So. 2d 1217 (Fla. 4th DCA 1999)…f allowing Flint’s relocation, since she was the primary residential parent. However, the legislature’s passage of section 61.13(2)(d) eliminated this presumption. See Flannery v. Crowe, 720 So. 2d 308, 308 (Fla. 4th DCA 1998); Hardwick v. Hardwick, 710 So. 2d 124, 125 (Fla. 4th DCA 1998). The effect of the statute is to remove from the relocation equation all bias in favor of the primary residential parent. The statute imposes an intensely fact specific framework on the relocation decision, where the trial j…
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Haroon-Pascal Mian v. Alyce Sabrina Grant Mian, 775 So. 2d 357 (Fla. 2d DCA 2000)…cate prior to the filing of the dissolution papers. . Although requiring the court to consider the statutory factors, section 61.13(2)(d) does not require the court to make specific record findings in regard to relocation. See Hardwick v. Hardwick, 710 So. 2d 124 (Fla. 4th DCA 1998). The trial court's order in this case is thus not reversible for failure to make such written findings.…
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Straney v. Floethe, 58 So. 3d 374 (Fla. 2d DCA 2011)…ns for exercising its discretion. See, e.g., Flint v. Fortson, 744 So. 2d 1217, 1219 (Fla. 4th DCA 1999) (“Even where specific findings are not mandatory, they are always desirable and ‘helpful to reviewing courts.’ ”) (quoting Hardwick v. Hardwick, 710 So. 2d 124, 125 (Fla. 4th DCA 1998)). In this case, the trial court did not make an express finding that a substantial, material, and unanticipated change in circumstances had occurred. The record does not permit us to conclude that such a finding is implicit…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mize v. Mize, 621 So. 2d 417 (Fla. 1993)
- Russenberger v. Russenberger, 669 So. 2d 1044 (Fla. 1996)
- Garone v. Parks, 668 So. 2d 307 (Fla. 4th DCA 1996)
- MacCONNELL v. Starla K. Cascante, 668 So. 2d 668 (Fla. 4th DCA 1996)