August 2011 Archives

If a petitioner meets the burden of proving that the abduction or removal was wrongful, any child who was wrongfully removed is to be promptly returned, unless the respondent can establish an affirmative defense. "If a petitioner meets the burden of proving by a preponderance of the evidence that the removal was wrongful, any children who were wrongfully removed 'are to be promptly returned unless one of the narrow exceptions set forth in the Convention applies.' 42 U.S.C. § 11601(a)(4); see also 42 U.S.C. § 11603(e)(1)(A) (setting forth preponderance of the evidence standard for proving that the child has been wrongfully removed). Thus, if the child is wrongfully removed, then the child must be returned to his or her state of habitual residence unless the respondent can establish an affirmative defense." See Furnes v. Reeves.

Once a party is ordered to make an equitable distribution of funds, even if the value of those funds is diminished by market conditions, the dollar amount that is required to be distributed will not be diminished. "Even if Former Wife's half of the funds diminished due to market conditions, she was still required to pay Former Husband one-half of the investments as of November 2007. If she was unable to pay that one-half from her portion of the funds, she was to use other funds to ensure he still received the same amount he was owed years ago." Shinitzky v. Shinitzky

In a relocation case, the focus is whether the relocation is in the child's best interest. In Rossman v. Profera, the Florida Court of Appeal stated: "Ultimately, the concern in a relocation determination is whether the relocation is in the best interests of the child. In fact, courts have held that relocation cannot be based solely upon a finding that it would serve the best interests of the custodial parent-not the minor child. See Fredman v. Fredman, 960 So. 2d 52, 60-61 (Fla. 2d DCA 2007) (affirming the trial court's denial of relocation because the evidence indicated that the relocation was in the mother's best interest but not the minor child's); Berrebbi v. Clarke, 870 So. 2d 172, 173 (Fla. 2d DCA 2004) (reversing an order granting a relocation request because '[a]ny evidence regarding the benefits of relocation related to the Mother and her new husband' and there was no evidence that relocation would be good for the minor child); Kuntz v. Kuntz, 780 So. 2d 1022, 1023 (Fla. 4th DCA 2001) ('[The relocation statute] imposes an intensely fact specific framework on the relocation decision, where the trial judge may base a decision on what is best for the child, even though a result may not be best for the primary residential parent seeking to relocate." (citation and internal quotation marks omitted))."