April 5, 2009

Memorandum of Law regarding Florida Statute 61.13001

In addition to our appellate practice, we also offer litigation support including, but not limited to, drafting complex motions and memoranda of law for attorneys throughout all phases of pre-trial litigation.  The firm was recently retained to draft a memorandum of law on the application of Florida Statute 61.13001.  Specifically, the trial court requested that counsel prepare a memorandum addressing whether section 61.13001, the Parental Relocation with a Child, applied in the absence of a prior court order.  In this particular case, the mother sought an expedited hearing on relocation and we, on behalf of the father, contended that under section 61.13001, the father was entitled to file an objection to relocation and that further the court should make the considerations and findings sufficient to support relocation in a final judgment, pursuant to section 61.13001(6)(b).  Our efforts resulted in a victory for the client and the wife’s motion for expedited hearing was denied.

Section 61.13001 became effective October 1, 2006 and was intended to define and clarify the relocation process.  A literal reading of the statute, however, suggests that the statute only applies where there is an existing order in place.¹  But, this literal reading of the statute would contravene the intent in Florida to be sure that all custody and relocation matters be determined in accordance with the best interests of the child.  Interestingly, the Florida Supreme Court has proposed an amendment to the Family Law Rules of Procedure, Rule 12.635², which would apply “to all proceedings to relocate the residence of a child under section 61.13001, Florida Statues,” without regard as to whether there is a prior court order in place.

It remains to be seen whether the proposed amendment will become effective.  It is also unclear as to how the trial courts will interpret and apply the relocation in the absence of a prior court order.  It seems counterintuitive to have such a formal procedure established for the consideration of a child’s relocation and only have the procedure apply at the existence of previous court order.  It seems the more practical application, as illustrated by the proposed amendment, is to consider all factors as set forth in section 61.13001 anytime the issue of a child’s relocation is brought before the court, irrespective of whether there has been a previous determination in the form of a court order.

¹ APPLICABILITY. –This section applies:
1. To orders entered before October 1, 2006, if the existing order defining custody, primary residence, time-sharing, or visitation of or with the child does not expressly govern the relocation of the child.
2. To an order, whether temporary or permanent, regarding the parenting plan, custody, primary residence, time-sharing, or visitation of or with the child entered on or after October 1, 2006.
3. To any relocation or proposed relocation, whether permanent or temporary, of a child during any proceeding pending on October 1, 2006, wherein the parenting plan, custody, primary residence, time-sharing, or visitation of or with the child is an issue.
(b) To the extent that a provision of this section conflicts with an order existing on October 1, 2006, this section does not apply to the terms of that order which expressly govern relocation of the child or a change in the principal residence address of a parent.
2 See,