Opinion
No. 1D22-981.
01-04-2023
Dearlyn LOJARES, Appellant, v. Alfonso SILVA, Appellee.
Cynthia Stump Swanson , Swanson Law Center, P.A., Gainesville, for Appellant. Sabina Tomshinsky , Home Town Law, P.A., Gainesville, for Appellee.
Cynthia Stump Swanson , Swanson Law Center, P.A., Gainesville, for Appellant.
Sabina Tomshinsky , Home Town Law, P.A., Gainesville, for Appellee.
B.L. Thomas, J.
In this case involving unmarried parents of children, the Mother appeals a final order of paternity determining timesharing under sections 742.10 and 61.13(3), Florida Statutes. The Mother argues that the trial court reversibly erred by penalizing the Mother for moving with her children to another county. We agree. In fact, the Mother had no legal obligation to seek permission from the court, or the Father, before the move, as no legal proceedings had occurred regarding paternity under section 742.10. We reverse and do not address other issues raised.
The Mother and Father were cohabitating in Alachua County and had two children. After they ended their romantic relationship, the Father moved into his parents' home. A year later, the Mother and the two children moved to St. Johns County. Soon after the move, the Father petitioned to determine paternity.
The trial court initially ordered the children to stay in St. Johns County, with the oldest child enrolled in online kindergarten during the beginning of the COVID pandemic school closures. The court ordered 50/50 timesharing of the children.
After schools had opened again, the Father moved to continue online school or to have the children attend in-person school in Alachua County. The trial court ordered the children to move back to Alachua County and designated the Father as the primary custodial parent. The Mother was to spend every first and third weekend of every month with the children.
The court began the trial by stating that a timesharing schedule was to be established and asked the Mother where she was currently living. The judge stated that a move back to Alachua County was "fundamental" to the outcome of how often the Mother would see the children. The Mother stated that she could not move back as she was trying to get her previous job back, but the position was filled and no other job opportunities were open. Paternity was not in dispute.
The Father testified that the Mother moved with the children without telling him "until the last minute." The Mother testified that when debating the move, she considered the children's home life, school district, and her own ability to provide for them with a better paying job at the Mayo Clinic.
The court ordered the Father be designated the majority and residential parent. The trial court stated that the best interest factor in section 61.13(3)(a), Florida Statutes, favored the Father, because the Mother did not facilitate "a close and continuing parent-child relationship," as she "is the parent who abruptly removed the kids from Alachua County and then secreted them in St. Johns County." This was clear legal error.
The trial court stated that the Mother's move was "wrong" because, contrary to the Father's own testimony, she made the move "without consulting with him, without letting him know. He found out after they were there." The trial court reiterated "that was just wrong," and while paternity had not been established, it was still "wrong to unilaterally pull up stakes and move with those children without seeking a court order first or at least without consulting with the other parent." But the Mother did nothing wrong under the law, nor did she violate any legal obligation to the unmarried Father. Section 742.031(2), Florida Statutes, states that "the mother shall be presumed to have all of the time-sharing and sole parental responsibility" prior to a paternity and timesharing determination. Here, the trial court inverted this statutory presumption.
"We review an order on timesharing for an abuse of discretion." Jennings v. Fredes, 327 So.3d 906, 909 (Fla. 1st DCA 2021) (citing Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980)). But "the question of whether the trial court properly applied the relocation statute is a matter of law, reviewed de novo." Milton v. Milton, 113 So.3d 1040, 1041 (Fla. 1st DCA 2013) (citing Raulerson v. Wright, 60 So.3d 487, 489 (Fla. 1st DCA 2011)). Florida's relocation statute, section 61.13001, Florida Statutes, does not apply to a change of a parent's principal place of residence before any paternity order has been issued. See Rolison v. Rolison, 144 So.3d 610, 612 (Fla. 1st DCA 2014) (holding that section 61.13001 did not apply where the mother moved to Georgia before the father filed for dissolution of marriage). A parent may move with the children without seeking permission from the court or the other parent. Id.
The trial court acknowledged that section 61.13001 did not apply to the Mother's move, but then continued to impose the statutory requirement to seek leave of the court or to consult the Father while evaluating section 61.13(3) best interest factors. At the time of the Mother's move, paternity had not been established, and thus she was under no legal requirement to seek a court order or consult the Father.
REVERSED and REMANDED for further proceedings consistent with this opinion.
Kelsey and Long, JJ., concur.