Carrie Elizabeth Young v. Michael Troy Luther

This is a timely appeal of the trial court's order denying (pending final hearing)
the mother's request to relocate with the parties' minor child, for whom she had been
designated primary residential parent when the parties' marriage was dissolved; and
granting (pending final hearing) the father's request to modify custody. We reverse the modification of custody, vacate denial of the relocation request, and remand for
an immediate final hearing on the mother's relocation request.

A parent requesting modification of primary residential custody of a child carries
the burden to show "that the parties' circumstances have changed substantially since
the entry of the last order addressing custody and that a change in custody would be
in the best interest of the child." Young v. Young, 732 So. 2d 1133, 1134 (Fla. 1st
DCA 1999). See Kendall v. Kendall, 832 So. 2d 878, 879-80 (Fla. 4th DCA 2002)
(applying same standard to temporary custody modification request); Glover v.
Glover, 820 So. 2d 324, 324 (Fla. 5th DCA 2001) (same). Mr. Luther did not meet
this burden. Accordingly, we reverse the trial court's grant of his request to modify
custody for failure to prove substantial change in circumstances. See, e.g., Kelly v. Kelly, 642 So. 2d 800 (Fla. 2d DCA 1994) (holding evidence of changed
circumstances insufficient, where mother had moved and changed jobs five times and
had lived with boyfriend, where there was no evidence that mother was not meeting
daughter's needs, and where evidence showed that mother had begun more secure and
permanent living arrangement); Kendall, 832 So. 2d at 879 (reversing temporary
custody modification because evidence that mother moved frequently was insufficient
when no evidence was presented that the child had suffered any adverse consequences
as a result).

Because the custody modification was in error and the denial of the mother's
relocation request appears to have been predicated on the custody determination, we
vacate the portion of the order denying (pending final hearing) the mother's relocation
request. The trial court should promptly schedule a hearing on Mrs. Young's request
to relocate so that the question can finally be resolved. See Brown v. Brown, 790 So.
2d 453, 454 (Fla. 1st DCA 2001) (holding relocation request may be granted upon a
proper showing despite stipulation in dissolution judgment prohibiting wife from
relocating while she was primary custodial parent). On remand, in deciding whether
Mrs. Young may relocate with the parties' child, the trial court should consider the relocation factors set forth in section 61.13(2)(d), Florida Statutes. See Wilson v.
Wilson, 827 So. 2d 401, 402 (Fla. 2d DCA 2002) (reversing for application of the
correct standard for relocation under section 61.13(2)(d), where it was not clear
whether the statute had been applied); Garone v. Parks, 668 So. 2d 307, 308 (Fla. 4th
DCA 1996) (holding same standard should be used for deciding temporary and
permanent relocation requests).

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