Can I Get Advance Permission from the Court to Relocate?

That sounds like a good idea for those "forward thinking" people who like to plan well in advance like me but the legal answer seems to be no. The Florida Supreme Court issued a ruling on January 14, 2010 in Arthur v. Arthur, SC08-1675 that runs contrary to this thought process.

In this case the trial court had awarded the mother primary custody of the parties' 16-month-old child. The mother had requested permission to move to Michigan with the child and the trial court agreed with the request, but only when the child turned three, finding that the child needed more time to bond with the Father. The Father appealed and the Second District Court of Appeals affirmed the lower court's order. The Father than appealed to the Florida Supreme Court.

The Florida Supreme Court found that the trial court was required to make findings as to what is in the child's best interests at the time of the trial not based on future possibilities. The Court further held that the lower court was incapable of predicting whether a future relocation, months or years in the future, would be in the child's best interests at that time. The Court instructed the trial court to remove the relocation provision. In their holding the Court indicated that the Mother is able to seek to relocate in the future by filing a modification action, but any modification action would be governed the two-part substantial change test. That test requires the movant must show both that (1) the circumstances have substantially, materially changed since the original custody determination and (2) that the child's best interests justify changing custody. Furthermore, the substantial change must be one that was not reasonably contemplated at the time of the original Court Order.

Evidence is Key

The difference between a conversation and a court hearing often revolves around proof. Proof is the ability of one party to show the Court that what they are saying is accurate. Sometimes the only proof is a person's sworn testimony but obviously, documentary proof or evidence, is preferable. A recent appellate decision out of Florida's 1st District Court of Appeals highlights this issue. In Chaney v. Fife, the Appellate Court decided last month that the slew of mistakes made by the trial court required the case be overturned. The underlying case involved issues of paternity, custody and child support. One of the many identified problems was that he trial court did not have any evidence to support its calculations for each party's federal tax liability. And worse, whatever evidence was presented was not written down by the Court it its findings of fact. Preparation and presentation of the underlying proof of the facts is crucial for trial.

Are your medical records still confidential in a divorce case?

The short answer is maybe not. A California appellate court ruled on this issue last week in Manela v. Superior Court, No. B21447. In that action, the parties were in the middle of a dissolution action that included a dispute over child custody. One party moved to quash subpoenas related to their medical records arguing that they were protected by doctor-patient privilege. The lower court had agreed and had, in fact, quashed the subpoenas. But the appellate court reversed the decision ruling that the constitutional right to privacy regarding medical records is not absolute and the party's privacy interests are outweighed by the state's compelling interest in protecting the child's best interests.

How old does my son have to be to decide which parent he lives with?

This is probably the most common question I get asked regarding custody issues. The short answer is 18. In Florida there is no age at which a child gets to decide who they live with. The child's preference, if they are deemed of sufficient age and maturity, is just one of 20+ factors the Court looks at when making a custody decision. Apparently there are some states where when a child turns 13 (or some other certain age) they do get to decide. Florida law is directly contrary to that.

Parenting Plans

Effective October 1st new law goes into effect regarding what is commonly referred to as custody. I say commonly because the current legal terms do not provide for that designation but rather for primary and secondary residential care. The new language change will do away with the terms "primary" and "secondary" residential parent. Instead the Court will devise a parenting plan that will address, among other things, the details of the time-sharing arrangement. The idea is to make the legal designation less of a win-lose but rather start with the notion that both parents will work together and then just try to define who will do what when. I think the idea behind the change is noble but I wonder how parents generally will take to it. Even now custody should not be seen as a win-lose and yet sometimes I have people say just that to me. Pinellas County Circuit Judge John Lenderman has provided the local bar associations sample blank plans and I hope to post or link one on this blog in the near future. It is my understanding that even old cases seeking modification if heard after October 1st will be required to submit the parenting plan so it is something anyone involved in this arena needs to look at closely.