Posted on September 12, 2015 in Family Law
The law provides for 20 deadline to file an objection to relocation, and if the objection is not filed within that period of time then relocation may be permitted unless it is not in the best interest of the child. The law provides that relocation may even be permitted without further notice or hearing unless a timely objection is filed. A common question in family law cases, including highly contested custody cases, is what will the court do under this set of facts? That question is further complicated when "equity" and considerations of the child’s best interests meet black letter law. Which will prevail–equity and child’s best interest or black letter law? The most experienced custody lawyer would agree that to think the latter would prevail every time is idealistic and unlikely.
Considerations of the child’s best interest in a court of equity will usually trump black letter law on substantive issues. Black letter law can trump best interest considerations on procedural matters. The following case is an example that illustrates how form over substance is not the case in family law and child custody cases. The most effective custody lawyer uses the facts and the law to obtain results.
In its September 2, 2015 decision in Adel Vaelizadeh v. Mahnz Hossaini, the Fourth District Court of Appeals reversed the Broward County trial court order allowing relocation based on father’s failure to file his objection to the proposed relocation within 20 days as required by law. The Fourth District Court of Appeals concluded that there existed "good cause" to preclude entry of the relocation judgment despite the father’s untimely response to the mother’s relocation petition. The father had filed a supplemental petition seeking custody of the parties’ seven-year-old son and his petition remained pending when the mother filed her petition requesting relocation. Even though the father missed the 20 day deadline to file his objection to the proposed relocation, he raised sufficient concerns as to the child’s best interest in his untimely filed motion to dismiss the mother’s relocation petition. The Fourth District Court of Appeals concluded that father’s untimely response was excusable because his original attorney filed a notice of unavailability to allow him to tend to an ill family member. Furthermore, it is well settled that custody determination should not be made by default, and so to summarily allow relocation without considering the child’s best interests is error. The Fourth District Court of Appeals reversed the trial court’s Judgment and remanded the case back to the trial court for an evidentiary hearing.
An experienced custody lawyer uses black letter law to advocate for their client’s position, while the court applies the law to the facts to ensure its ruling promotes the child’s best interests. Procedural issues can be resolved by strict interpretation of the law whereas substantive issues most likely can not. What this means is that if you are involved in any situation where custody of a minor child is at issue, it is highly recommended that you hire the most experienced child custody lawyer you can afford. Never take anything for granted when it comes to your child or children. If you have questions about custody of a minor child, contact a Board Certified Specialist in Marital & Family Law at rel=”nofollow” >(904) 360-6100.
Family Law. Family Values.