Is Relocation Not in the Best Interests of the Children if Ex-Spouse Promises to Change His Poor Behavior?

A husband and wife were married for 12 years and had two minor children. A major issue in the divorce was the wife’s request to move back to Virginia with their children. The husband opposed the move.

The couple had lived in Virginia for 15 years prior to moving to Florida in 2012. They were here in Florida for only two years before the wife filed for divorce in 2014. She alleged the relocation back to Virginia would be in the children’s best interest and that it would eliminate her need to constantly travel for her job, which required her to meet with clients near her employer’s office in Virginia.

The family moved to Florida in 2012 after the husband lost his job in Virginia; however, the wife continued to travel to Virginia for work. She also claimed alleged that the husband suffered from mental health issues related to compulsive gambling. That’s what led to the wife to file for divorce and to return home to Virginia.

The bench trial included testimony on the wife’s request for relocation to Virginia and the husband’s gambling addiction. She testified that the marriage began to deteriorate in 2011 when she discovered that he’d gambled away the family’s savings. However, there was also substantial evidence presented on his mental health issues. The wife said that when he was unhappy, he’d have periods of non-communication and would stay in bed for days at a time. The husband acknowledged his mental health issues and said that he needed to get better so that he could be a part of the family. At first, the wife gave the husband another chance if he’d quit gambling and get some help. But when she twice caught him gambling, she’d had enough and filed for divorce.

The husband’s behavior and mental state got progressively worse between when the wife filed for divorce and the trial. This included continued compulsive gambling and an incident right before trial in which the husband was pulled over by the police. He called the wife in the early morning hours to pick him up, appearing to be drunk.

Trial Judge Gives Husband Another Chance

The trial court evaluated the evidence based on the statutory factors provided in Florida Statute § 61.13001 and held that the wife proved by a preponderance of the evidence that relocation was in the best interest of the children. However, the trial judge noted that pursuant to the statute, after the burden is met by the wife, it then shifts to the husband to overcome the wife’s proofs. The husband claimed he’d give up his gambling and work harder on his mental health issues. Would the judge give him another chance?

The trial court found that, although the wife did meet her burden of proof, “the husband will be able to overcome the wife’s burden of proof, provided the following takes place,” and then listed several conditions. Some of these were that he not gamble or enter any casinos, attend Gamblers Anonymous, tell his ex-wife about his therapist, have regular therapy, take any prescribed medication for his mental health, and to actually exercise his timesharing with the children. The trial court said that “if the husband does all of those things,” the best interests of the children will be enhanced. The trial court noted that the wife’s burden of proof had been met “absent the husband meeting his conditions.” Based on this, the trial court denied the wife’s petition for relocation to Virginia.

On appeal, the wife argued that the trial court abused its discretion by letting her ex rebut the trial court’s finding that relocation was in the best interests of the children with nothing more than the promise of a change to his future behavior.

Husband Didn’t Show that Relocation Wasn’t in the Children’s Best Interest

Judge Burton Conner of the Florida District Court of Appeal, Fourth District agreed with the wife and in his opinion for the appellate court said that an appellate court reviews whether there’s competent substantial evidence to support the trial court’s findings of fact, but doesn’t engage in reweighing the evidence. Judge Conner explained that § 61.13001(8) of the Florida Statutes governs the burden of proof for rulings on relocation. That law says:

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.

The Court of Appeal said that the trial court made no finding that the husband met his burden of proof by a preponderance of the evidence that relocation was not in the children’s best interest. Instead, the trial judge made clear that the husband hadn’t met this burden, stating that the “husband will be able to overcome the wife’s burden of proof, provided the following takes place.” The trial court denied the petition for relocation based on events that had not yet occurred in hopes that the husband could change his ways. This was an error, Judge Conner said.

The husband could only satisfy his burden of proof by actually producing evidence sufficient to meet the standard set forth in  the statute, and not just his promise to behave better. A court can’t consider potential, future, or even anticipated events as a substitute for evidence, the appellate court held. In this case, the trial court essentially relieved the husband of meeting his burden of proof altogether because it denied the motion for relocation even after finding that the husband didn’t otherwise rebut the wife’s showing that relocation was in the best interests of the children.

 

Relocation Decisions Must be Made at Final Hearing

In addition, Judge Conner said that the trial court’s ruling violated the Florida Supreme Court mandate that best interest determinations concerning petitions for relocation be made “at the time of the final hearing” and be supported by competent substantial evidence. The Supreme Court rejected a “prospective based” analysis concerning petitions for relocation, and found that:

Indeed, a trial court is not equipped with a “crystal ball” that enables it to prophetically determine whether future relocation is in the best interests of a child. Any one of the various factors outlined in section 61.13001(7) that the trial court is required to consider, such as the financial stability of a parent or the suitability of the new location for the child, could change within the extended time period given by the court before relocation. Because trial courts are unable to predict whether a change in any of the statutory factors will occur, the proper review of a petition for relocation entails a best interests determination at the time of the final hearing, i.e. a “present-based” analysis.

As a result, the Court of Appeal reversed the judgment and remanded the case for an order authorizing the wife’s relocation to Virginia with the minor children. Solomon v. Solomon, 2017 Fla. App. LEXIS 8300 (Fla. DCA 4th June 7, 2017).

Parental Relocation Experts

Parental relocation involves a request by one parent to move more than 50 miles away from the other parent that has a right to child timesharing. Reasons a parent may have for relocating may include a new job, or being closer to extended family that can help with child care and provide financial assistance.

The procedure for seeking judicial approval for relocation over the objection of the other parent can be expedited…it may include short deadlines, and both parties need to be aware of these or risk forfeiting their rights. Make sure you meet every deadline. Call DeVoe Law Firm for a free consultation about your parental relocation case.