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Father’s Failure to Return Daughter to Florida on Time Allows for Alteration of Parenting Plan

airplane.jpgFollowing time-sharing schedules can sometimes be complicated, especially when timesharing involves a child who is old enough to have a desire to assert her own self-control over where she lives. Even when faced with a child who does not want to return to the home of your ex-spouse, it is important to note that failure to follow court-ordered dates for returning a child to Florida from outside the state (or country) can have damaging impacts on your custody rights. In case recently decided by the 5th District Court of Appeal, that court ruled that an emergency order granting custody to a mother was legal even though the trial court never determined that it was in the daughter’s best interest. The court was not required to address the daughter’s best interests because the father engaged in an “improper removal” by failing to bring the daughter back to Florida from the United Kingdom on the date the court had established a month earlier.

A couple had two children when they divorced in 2003. Eleven years later, the father sought court permission to temporarily relocate the children to the United Kingdom for the summer. The trial court allowed the temporary relocation, but ordered the father to return the couple’s youngest daughter to Florida by August 7 at the latest, as her first day of school was August 11.

However, on August 7, the mother received an unexpected phone call from her ex-husband. Maguire told Wright that the daughter had refused to board the plan back to Florida. The mother spoke to her daughter, who confirmed that she was not getting on the plane. The following day, the mother filed a motion for immediate custody of the child. The trial court granted the mother’s request.

The father appealed this decision, arguing that the trial court’s order was not proper because it is did not include any analysis regarding the best interest of the daughter. Section 61.13 of the Florida Statutes, which governs parenting plans, generally requires that the trial court make findings that the approved plan is in the child’s best interest. The trial court in this case made no such best-interest finding before granting custody to the mother.

The appeals court determined that, although best-interest findings are generally mandatory, an exception existed in cases like this one. The court, back in 2002, announced that it “specifically recognized a ‘true emergency’ exception to the general rule, concluding that the normal burden on the party seeking custody to show that the custody transfer is in the child’s best interest need not be met when there is an improper removal of a minor child from the state.”

While the father’s taking the daughter outside Florida was originally proper and legal, it ceased to be so once the daughter did not return to the state on August 7. At that point, the daughter’s continued absence from the state constituted an “improper removal.” That meant that the law did not require the trial court to decide if giving custody to the mother was in the daughter’s best interest before ruling on Wright’s emergency motion.

The appeals court did acknowledge, however, that this applied only to the emergency motion. It was “clear that a further hearing is necessary to resolve the issues of temporary shared parental responsibility and temporary timesharing,” and that the best interest of the daughter should be the chief consideration at that time.

Child custody matters are often complicated, and can be made more so when dealing with older children and long distances. For answers to your custody questions or concerns, talk to the South Florida family law attorneys of Sandy T. Fox, P.A.. Our attorneys can help you understand the extent of your rights (or obligations) under the law.

Contact us online or by calling (800) 596-0579 to schedule your confidential consultation.

More blog posts:

Jurisdiction Rules Prevent Father From Modifying Child Support in Florida, Fort Lauderdale Divorce Lawyer Blog, Nov. 24, 2014
Father’s Right to Share in Residential Decision-making Triggers International Convention, Forces Dispute Case Back to Brazilian Courts, Fort Lauderdale Divorce Lawyer Blog, June 5, 2014