HCBA Lawyer Magazine No. 34, Issue 6 | Page 46

toPreSumeornottoPreSume – relocationwithaminorchild

Marital & Family law Section Chair : ­Andrew­D . ­Reder , ­B . C . S . ­ — ­Sessums­Black , ­P . A .

howcantherebeno presumptioninfavoror againstrelocationifthe courtmust … presume equaltime-sharing ?

They say the only constant in life is change . The recent changes to Florida Statute Chapter 61 , effective on July 1 , 2023 , were seemingly designed to help navigate timesharing issues . We now have an official starting point — a rebuttable presumption that equal time-sharing is in a child ’ s best interests . 1 This is great , right ? It will make our jobs as family law attorneys so much easier . Well , not necessarily . At least not when we are dealing with relocation with a minor child .

The problem here is a contradiction with language in section 61.13 and that in our relocation statute , Florida Statute section 61.13001 ( 2023 ). While Section 61.13 has a rebuttable presumption that equal time-sharing is in the child ’ s best interests , Section 61.13001 , on the other hand , provides that there is no presumption “ in favor or against a request to relocate with the child .” See Pun v . Pun , 363 So . 3d 1113 ( Fla 1st DCA 2023 ).

Prior to this change to section 61.13 , as family law attorneys , when a potential client would

meander into our offices seeking a relocation , we could safely tell him that there is no presumption for or against a relocation , which was a great place to start . But even though the statute still contains this language , does this remain the correct advice ? How are we to deal with a presumption of equal time-sharing , but no presumption in favor or against relocation , which clearly also deals with time-sharing ?

In determining whether to grant a parent ’ s request to relocate at least fifty miles away with a child , the Court must consider all eleven factors listed in Section 61.13001 ( 7 ), including the final one , which states that the Court must consider , “[ a ] ny other factor affecting the best interest of the child or as set forth in section 61.13 .” Accordingly , Section 61.13001 dictates that the Court must examine the best-interest factors contained in section 61.13 .

This conflict begs the question of how can there be no presumption in favor or against relocation if the Court must consider the factors in Section 61.13 and presume that equal time-sharing is in the child ’ s best interest . If equal time-sharing is where the Court must begin an

analysis , isn ’ t that a strike against a Petitioner seeking to relocate at least fifty miles away ? While it is a rebuttable presumption overcome by a preponderance of the evidence , logic would dictate that the start of a relocation case would be overcoming this presumption that equal time-sharing is in the child ’ s best interests .

Case law will certainly dictate the answer to this question in the future , but until then , is it safe to tell a client that there is no presumption for or against relocation ? This can certainly be argued several ways , but with the requirement that the Court consider section 61.13 , it seems that it must start with the rebuttable presumption that equal time-sharing is in the child ’ s best interest . n

1

Florida Statute Section 61.13 ( 2 )( c )( 1 ) ( 2023 ).

Author : Deborah Thomson – The Women ’ s Law Group , P . L .

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