Florida Court Reverses Motion Allowing Relocation of Child
Citation: Mata v Mata, 75 So. 3d 341 (Fla. 2011)
This is a case between Jose and Beth Mata. They lived in Miami-Dade county Florida and have one child. When the marriage ended and the couple decided to get a divorce, it was decided that it was in the child’s best interest that the parents would live in close proximity to each other and share the custody of the child equally in a time-sharing schedule. In March 2011, the mother petitioned the court to allow her to relocate the child to Durham South Carolina, where she now resides. The father objected and counter-petitioned the court to not allow her to relocate the child. The trial was scheduled for August 12, 2011.
On August 2, 2011, the mother filed an emergency motion to allow her to temporarily relocate the child during the impending hearings. When the August 12 court date arrived, counsel for the father was feeling ill, and the court decided to adjourn the hearing until November 18, 2011. Then the court decided to address the mother’s emergency motion for temporary relocation pending the final hearing. The court heard argument from counsel for an hour during which the court neither heard new testimony nor received evidence. In the end, the court granted the mother's emergency motion to relocate, stating in its order that the decision was "based upon the review of the pleadings and argument of counsel."
Jose Mata, the father appeals the court’s decision because the court did not follow the rules as described by section 61.13001(6)(b), Florida Statutes (2011), which states:
“(b) The court may grant a temporary order permitting the relocation of the child pending final hearing, if the court finds:
. . . .
[*343] 2. From an examination of the evidence presented at the preliminary hearing, that there is a likelihood that on final hearing the court will approve the relocation of the child, which findings must be supported by the same factual basis as would be necessary to support approving the relocation in a final judgment.”
The father further argues that the court did not consider any of the following rules in the statutes that require evidence to prove one way or another that it was or was not in the child’s best interest to allow the relocation. Also, because the court records didn’t show that the court heard new testimony or evidence to determine that “there is a likelihood” that the court would approve the relocation at the final judgment, the court made an error in the matter of law and misapplied the proper legal standard set forth in section 61.13001, see Canakaris v. Canakaris, 382 So. 2d 1197, 1202-03 (Fla. 1980). The court's decision to grant the mother's motion was limited to a review of the pleadings and argument of counsel. The court never received any evidence or testimony which would have shown a factual basis permitting relocation. The court decided that it made an error in allowing the mother’s emergency petition to relocate the child and it reversed its original decision.
This is a link to the School library for copy of the case file. Case # No. 3D11-2297
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Florida Statute governing the temporary relocation of a child
CORE TERMS: relocation, temporary, emergency, relocate, final hearing, abused, final judgment, factual basis, nonrelocating, matter of law, rule of law, minor child, failed to comply, best interest, evidence presented, abuse of discretion, necessary to support, approving, approve, order permitting, minor children, argument of counsel, preliminary hearing, preponderance, time-sharing, educational, emotional, objecting, marital, alimony
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