Mize v. Mize

We have for review Mize v. Mize, 589 So.2d 959 (Fla. 5th DCA1991), based on conflict with cases from other district courts of appeal. We quash Mize.

Dee Ann and Danny Mize were divorced in 1985, after six years of marriage. The final judgment of dissolution awarded primary physical residence of the couple’s minor daughter, Lauren, age two, to Dee Ann, with reasonable visitation rights for Danny. A subsequent order granted Danny visitation privileges on alternate weekends, and further provided that “[b]oth parties are expressly forbidden to move [the child] from the State of Florida without the express permission of this Court.” Dee Ann petitioned the court in 1990 for permission to move with Lauren, then seven years old, to California, claiming that Danny was in arrears in child support payments, that she had received an offer of employment in California that would increase both her rate of pay and her potential for promotion, and that her father, the child’s maternal grandfather, lives there and would provide support. Danny opposed the move and sought primary physical residence.

Following trial, a special master recommended that Dee Ann’s petition be granted. The special master noted the following: Dee Ann provided a loving and stable home for the child; Dee Ann’s economic circumstances would be improved by the move; the child’s domestic and educational environments would be improved; Dee Ann and the child would both benefit from increased contact and support of the maternal grandfather; and Dee Ann is amenable to arranging extensive alternative visitation and will pay transportation costs. The special master’s report was adopted by the trial court. The district court reversed, ruling that to allow the child to be permanently removed from Florida would be contrary to its precedent discouraging removal.

Florida law presumes that parents will share in decisionmaking about their children even though the parents are no longer married. Section 61.13(2)(b), Fla. Stat. (1989). Thus, although one parent may have primary residential responsibility for a child, the law seeks to assure that the child have “frequent and continuing contact” with both parents and that parental responsibility for the child be shared. Id.

Both Florida courts and courts throughout the country have had difficulty determining when a primary residential parent may move a child from a particular area. Unfortunately, there is no way to fashion a bright-line rule for determining when a move that will geographically separate a child from one of his or her parents is permissible. There are an infinite number of situations that must be evaluated in light of the best interests of the families involved. However, trial judges need some direction in making that determination.

Accordingly, we adopt the approach articulated in Hill v. Hill, 548 So.2d 705 (Fla. 3d DCA1989), review denied, 560 So.2d 233 (Fla.1990). As Judge Schwartz stated:

[S]o long as the parent who has been granted the primary custody of the child desires to move for a well-intentioned reason and founded belief that the relocation is best for that parent’s — and, it follows, the child’s — well-being, rather than from a vindictive desire to interfere with the visitation rights of the other parent, the change in residence should ordinarily be approved.

548 So.2d at 707-08 (Schwartz, J., specially concurring) (footnotes omitted). However, Judge Schwartz recognized that circumstances may exist that would justify a departure from the general rule. 548 So.2d at 708 n. 3. For example, when older children are involved, the trauma of leaving friends, other family members, and school may outweigh the trauma in separating from the primary residential parent. See id. Thus, in making the ultimate decision, trial courts must consider and weigh factors discussed by Judge Nesbitt, such as:

1. Whether the move would be likely to improve the general quality of life for both the primary residential spouse and the children.

2. Whether the motive for seeking the move is for the express purpose of defeating visitation.

3. Whether the custodial parent, once out of the jurisdiction, will be likely to comply with any substitute visitation arrangements.

4. Whether the substitute visitation will be adequate to foster a continuing meaningful relationship between the child or children and the noncustodial parent.

5. Whether the cost of transportation is financially affordable by one or both of the parents.

6. Whether the move is in the best interests of the child. (This sixth requirement we believe is a generalized summary of the previous five.)

548 So.2d at 706; see also Mast v. Reed, 578 So.2d 304, 311 (Fla. 5th DCA1991) (Sharp, J., concurring in part, dissenting in part) (discussing similar factors). However, in cases where the final judgment incorporates a prohibition against the relocation of the child thereby reflecting that the issue was litigated, the parent with the primary residential responsibility must show a change of circumstances in order to justify the relocation.

In all cases of this type, the best interest of the child clearly is the prime consideration. See Department of Health and Rehabilitative Services v. Privette, 617 So.2d 305 (Fla.1993).

This issue presents an impossible problem for the children, the parties, and the courts. We hope society continues to move toward an alternative means of resolving these types of conflicts that will better serve parties than does the adversarial system. In the meantime, we believe the approach taken by the judges in Hill best serves both the parties and the courts.

We quash the decision of the district court and remand for reconsideration in light of our present opinion. Because Danny Mize argued on review before this Court only against removal of the child and did not seek primary residency, he has abandoned any separate residency claim. On remand, only the removal issue will be addressed.

It is so ordered.

OVERTON, McDonald, grimes, KOGAN and HARDING, JJ., concur.

BARKETT, C.J., concurs with an opinion.

SHAW, J., concurs in result only with an opinion.

. E.g., Hill v. Hill, 548 So.2d 705 (Fla. 3d DCA1989), review denied, 560 So.2d 233 (Fla.1990); Bachman v. Bachman, 539 So.2d 1182 (Fla. 4th DCA1989); Nissen v. Murphy, 528 So.2d 502 (Fla. 2d DCA1988); McIntyre v. McIntyre, 452 So.2d 14 (Fla. 1st DCA1984). We have jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution.

.Courts’ positions on custody matters have evolved significantly over the years. Compare Busbee v. Weeks, 80 Fla. 323, 325, 85 So. 653, 653 (1920) ("At common law the father has the paramount right to the custody and control of his legitimate minor children....") with Fields v. Fields, 143 Fla. 886, 890, 197 So. 530, 531 (1940) ("Other things being equal ... the mother of infants of tender years [is] best fitted to bestow the motherly affection, care, companionship, and early training suited to their needs.”) (quoting Gayle v. Gayle, 220 Ala. 400, 125 So. 638, 639 (1930)). In the latter half of this century, courts and legislatures began to recognize that both parents should play a role in caring for children, even if the parents no longer live together. See Paul S. Quinn, Jr., Note, Shared Parental Responsibility and Residence Restrictions in Florida, 38 U.Fla.L.Rev. 117, 121 (1986); see also ch. 71-241, Laws of Fla.; ch. 82-96, Laws of Fla.

. As Judge Sharp has noted: "This state’s reporter system contains a bewildering array of decisions wrestling with the review of trial court orders which permit, or refuse to permit, a custodial parent to leave Florida with a minor child or children." Mast v. Reed, 578 So.2d 304, 309 (Fla. 5th DCA1991) (Sharp, J., concurring in part, dissenting in part).

. See, e.g., In re Marriage of Eckert, 119 Ill.2d 316, 116 Ill.Dec. 220, 518 N.E.2d 1041 (1988); In re Marriage of Frederici, 338 N.W.2d 156 (Iowa 1983); Yannas v. Frondistou-Yannas, 395 Mass. 704, 481 N.E.2d 1153 (1985); Auge v. Auge, 334 N.W.2d 393 (Minn.1983); Holder v. Polanski, 111 N.J. 344, 544 A.2d 852 (1988); Weiss v. Weiss, 52 N.Y.2d 170, 436 N.Y.S.2d 862, 418 N.E.2d 377 (1981).

. The test as stated by Judge Nesbitt in the majority opinion evolved from caselaw in Florida's Third and Fourth District Courts of Appeal, as well as from New Jersey cases. Hill v. Hill, 548 So.2d at 706.