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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
Case No. 2D03-1774
JAMES D. LYLE,
Opinion filed July 9, 2003.
Appeal from nonfinal order of the
Circuit Court for Hillsborough County;
Wayne S. Timmerman, Judge.
Allison M. Perry of Law Office of Allison M.
Perry, P.A., Tampa, for Appellant.
Eileen H. Griffin of Griffin & Associates,
P.A., Brandon, for Appellee.
Catherine Decker ("the mother") appeals the trial court's order awarding
temporary custody of the parties' minor child to James D. Lyle ("the father"). We have
jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii). Because
the record does not reflect that the trial court considered and addressed the best
interests of the minor child in making the temporary custody award, we reverse and
At the time of the minor child's birth, the parties were not married but had
been living together for some time. Approximately four months after the child was born,
the relationship of the parties became troubled. On April 25, 2002, the mother left
Florida with the minor child to return to her home state of Indiana. Shortly after arriving
in Indiana, the mother filed a petition in the Indiana court system to establish the
paternity of the child and to seek support from the father. The father responded to the
Indiana petition and filed a similar petition in Florida. In her answer to the Florida
petition, the mother conceded that the father was the natural father of the child and
requested that she be awarded custody and child support. On July 11, 2002, the
Indiana court determined that Florida was the proper jurisdiction to hear the matter and
accordingly dismissed the mother's petition for lack of jurisdiction.
On October 4, 2002, the father filed in the Florida proceedings a motion
for immediate return of and temporary custody of the child seeking the following relief:
(1) requiring the mother to return the child to the jurisdiction of the court; (2) awarding
the father temporary primary residential responsibility of the parties' minor child with
reasonable rights of visitation to the mother; (3) ordering the mother to immediately
return the parties' minor child to the care of the father; (4) enjoining and restraining the
mother from permanently removing the minor child, or allowing anyone else to remove
the minor child, from the State of Florida; (5) ordering the mother to pay the father's
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attorney's fees and costs; and (6) granting any further relief the court deemed fair and
At the temporary hearing on the father's motion, the mother and the father
testified on a variety of subjects, including the following: the parties' financial support
of the child, child care arrangements, visitation, and the manner in which the parties'
relationship had deteriorated. After the parties completed the presentation of the
evidence, the trial judge commented on the mother's "surreptitious" relocation to Indiana
and the need for the child to have "meaningful contact" with both parents. Never-
theless, the trial judge did not address the issue of the best interests of the child.
I. Best Interests
On appeal, the mother argues that the temporary custody award was
improper because the record fails to reflect that the trial court considered the best
interests of the child in making the temporary custody award. We agree. The shared
parental responsibility law, section 61.13, Florida Statutes (2002), applies to custody
disputes between unmarried parents as well as married parents. See Stepp v. Stepp,
520 So. 2d 314 (Fla. 2d DCA 1988). Although separate findings as to each factor in
section 61.13(3) are not required to sustain a temporary award, nevertheless, the
record or the final judgment must reflect that the custody determination was made in
the best interests of the child. See Williams v. Williams, 845 So. 2d 246 (Fla. 2d DCA
2003); Ryan v. Ryan, 784 So. 2d 1215 (Fla. 2d DCA 2001); Julian v. Bryan, 710 So.
2d 1037 (Fla. 2d DCA 1998); Bader v. Bader, 639 So. 2d 122 (Fla. 2d DCA 1994)
(en banc); Armstrong v. Panzarino, 812 So. 2d 512 (Fla. 4th DCA 2002). Neither the
transcript of the trial court's oral pronouncement of its ruling nor the temporary custody
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order (which merely incorporated by reference the trial court's oral pronouncement)
addresses the best interests of the child. Therefore, we must reverse and remand the
case for a further hearing.
The mother also asserts that the trial court erred in not considering the
relocation factors set forth in section 61.13(2)(d)(1)-(6) in making its temporary custody
determination. However, this is not a relocation case in the strict sense. There was no
court order in existence at the time the mother left the state to move to Indiana with the
child. See generally Mian v. Mian, 775 So. 2d 357 (Fla. 2d DCA 2000).
Nevertheless, relocation factors are to be considered as part of the court's
evaluation of "all factors affecting the welfare and interests of the child." Id. at 359
(quoting § 61.13(3), Fla. Stat. (1999)). Furthermore, a trial court should make this
consideration at the earliest opportunity. Id.; see also Garone v. Parks, 668 So. 2d 307,
308 (Fla. 4th DCA 1996). Upon remand, the trial court should consider the statutory
relocation factors as part of its evaluation of the best interests of the child.
III. Impermissible Factors
Finally, the mother contends that the trial court based its custody award on
impermissible factors, to wit: (1) to equalize the amount of time the child would spend
with each parent pending a final hearing in the case and (2) to sanction the mother for
relocating with the child to Indiana absent prior notice to the father or court approval.
(Based upon the record available to us, there does not appear to have been any legal
impediment to the mother's relocation to Indiana.)
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Our disposition of this case makes it unnecessary to reach the mother's
argument on this point. Nevertheless, for the guidance of the trial court and the parties
on remand, we note that the decision of the trial court on the issue of temporary custody
must be based upon the best interests of the child and not as a sanction for the conduct
of either of the parties. LaLoggia-VonHegel v. VonHegel, 732 So. 2d 1131 (Fla. 2d
DCA 1999); O'Neill v. Stone, 721 So. 2d 393 (Fla. 2d DCA 1998); Armstrong v.
Panzarino, 812 So. 2d 512 (Fla. 4th DCA 2002).
The father argues that we should let the custody order stand in order to
avoid "unnecessary upheaval in the minor child's life." We are sensitive to the need to
minimize disruptions to the custodial arrangements for the child. See Potter v. Haffner,
561 So. 2d 1 (Fla. 2d DCA 1990). Therefore, while we reverse the trial court's order
granting temporary custody of the minor child to the father and remand this case to
the trial court for a further hearing on this issue, temporary custody of the child shall
remain with the father until such a hearing is completed. Furthermore, as in Williams v.
Williams, 845 So. 2d 246, 249 (Fla. 2d DCA 2003), the trial court must hold such a
hearing within twenty days from the issuance of our mandate unless the parties agree to
hold this hearing at a later time.
Reversed and remanded.
CANADY and VILLANTI, JJ., Concur.
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