Update: Minor Child Permitted To Relocate Out Of State to Reside With The Father After The Trial Court Granted A Motion For Rehearing In Favor Of The Father Who Received Litigation Support From Bresky Law

Following the trial court’s dismissal of his Second Supplemental Petition to Permit Relocation with Minor Child in a paternity action, the Father retained Bresky Law to draft a Motion for Rehearing to be filed by trial counsel. The trial court granted the Motion for Rehearing, which effectively undid the dismissal order. Following the granting of the rehearing motion, the court authorized the minor child to relocate with the Father pursuant to the parties’ agreement.

The relevant history leading up to the Second Supplemental Petition is as follows. Pursuant to the Final Judgment, our client was declared the child’s biological father and he was afforded timesharing rights. The Father later filed his First Supplemental Petition to Permit Relocation with Minor Child and despite the parties entering into a “Stipulation,” they did not agree to any modification of timesharing. The parties stated in their Stipulation that they would work together to create a long-distance parenting plan as the Father no longer lived in Florida. The court ratified the Stipulation. The parties did not reach an agreement on a parenting plan.

Less than one year after the court’s ratification of the Stipulation, the Father filed his Second Supplemental Petition, wherein he asserted that it was in the child’s best interest that the child resides with the Father out of state. In response, the Mother filed a Motion to Dismiss the Second Supplemental Petition.

Following a hearing, the trial court granted the dismissal of the Second Supplemental Petition. The trial court found that the parental relocation statute, section 61.13001, Florida Statutes, was inapplicable because the Father was not seeking to relocate his principal address since the court’s Ratification Order. The court also determined that res judicata barred the Father’s Second Supplemental Petition.

In the Motion for Rehearing, Bresky Law claimed that the court erred in dismissing the Second Supplemental Petition. The Motion for Rehearing explained that the Second Supplemental Petition sought a change in the location of the Father’s principal residence from his principal residence at the time the last order establishing or modifying timesharing was entered, which was the Final Judgment when the Father resided in Florida. We argued in the Motion for Rehearing that the court erroneously relied on the Ratification Order as the last order establishing or modifying timesharing. The Motion for Rehearing served dual bases: (1) to persuade the court to consider whether the dismissal was properly entered; and (2) to preserve the record for appeal where there was no court reporter at the hearing which led to the dismissal.

While the Motion for Rehearing was pending, the Father additionally retained Bresky Law to appeal the dismissal of the Second Supplemental Petition. While the appeal was pending, the trial court conducted a hearing on the Motion for Rehearing. At that hearing, the trial court found that the Motion for Rehearing was “well-taken.” Fortunately for our client, the court granted the Motion for Rehearing and ordered the Mother to file her response to the Second Supplemental Petition. The court commented that the court never reversed itself previously. The Motion for Rehearing persuaded the trial court to find that the dismissal order was erroneously entered. As a result, our client avoided litigating the issue in the appellate court, which saved him both time and expenses.

We are thrilled to announce that subsequent to the granting of the motion for rehearing, the parties entered into a settlement agreement, which allowed the minor child to relocate out of state to reside with the Father. The trial court recently approved of the settlement agreement and the relocation will take effect in December of 2019.