Florida Circuit Court for _____County

Civil Action No. _____________

IN RE THE MARRIAGE OF

SALLY BRIGHT PETITIONER

V. MEMORANDUM

JOHN BRIGHT RESPONDENT

Comes Sally Bright , by Counsel, and for her Memorandum states as follows:

I. FACTS

The petitioner Sally Bright has filed a divorce petition against the respondent John Bright.

The present question before the Court is the award of primary custody and time sharing of

their 14 year old daughter Chastity between the petitioner and the respondent in regards to

which the following facts should be taken into account.

The petitioner has always been an active parent in the day to day life and care of Chastity.

The respondent has recently come out as gay and already has a boyfriend. As per the expert

testimony of Dr. Frank Edwards, primary custody of the daughter should be granted to the

petitioner as a sudden change of sexual orientation of the respondent may lead to the Chastity

having to bear severe teasing at her school, which will be a harrowing experience for a

teenager. The respondent’s boyfriend will soon start living with the respondent and Chastity

has confirmed that she feels weird around the new boyfriend.

The respondent is a habitual domestic abuser and has physically abused the petitioner several

times in the past.

The respondent is a habitual drinker and even drinks to excess on occasion which can be

dangerous for Chastity when she is being transported by car if the child is allowed to live

with the respondent.

II. WHETHER IT WOULD BE IN THE BEST INTERESTS OF THE CHILD TO

REMAIN WITH THE PETITIONER OR THE RESPONDENT?

.61.13 mandates that “the best interest of the child shall be the primary consideration” in

determining a time-sharing situation, the circumstances of which favors the child being with

petitioner.

A. THE RESPONDENT IS A HABITUALLY COMMITTED ACTS OF

DOMESTIC VIOLENCE AGAINST THE PETITIONER.

s. 61.13 of Florida Civil Practice and Procedure Code, establishes a presumption that all

instances of domestic violence is detrimental to the child, and the Court may on such basis

deny the perpetrator of domestic violence even shared custody children. The reason for the

law is that a home in which domestic violence has repeatedly occurred leaves a long term

detrimental effect on the psyche of children. The respondent John Bright has a repeated and

demonstrated history of physical abuse amounting to domestic violence against his wife, the

petitioner. It would therefore undoubtedly be (legally) detrimental for the safety and well-

being of Chastity to remain in the sole custody of a violent person like the respondent, and

would be against the considerations of s. 61.13.

 B. THE RESPONDENT IS MORALLY UNFIT TO HAVE PRIMARY CUSTODY

OF THE CHILD.

S. 61.13(3)(f) mandates that the Court must take into consideration the moral fitness of the

parent. The respondent is a habitual drinking and also has a history of domestic violence.

Therefore he is clearly morally unfit to take sole primary custody of Chastity, which should

go to the petitioner instead.

C. THE RESPONDENT WILL NOT BE ABLE TO PROVIDE AN

ENVIRONMENT FREE FROM SUBSTANCE ABUSE.

S. 61.13(3)(q) requires the Court to consider whether the parent can provide an environment

to the child that is free from substance abuse. It is a known fact that the respondent has a

history of drinking to excess, which counts as alcohol abuse. Therefore, it would be unfair for

the Court to subject the child to such an environment, and hence primary custody should be

awarded to the petitioner instead.

D. THE RESPONDENT WILL NOT BE ABLE TO PROVIDE A CONSISTENT

ROUTINE FOR THE CHILD

S.61.13(3)(k) requires the Court to consider whether the parent would be able to provide a

consistent routine for the child, such as discipline and daily schedules for homework, meals

and bedtime. While it is true that the respondent had until before the divorce had been

regularly involved in Chastity’s life, it was achieved with the assistance of the petitioner

which will not be there after the divorce. Also, considering the fact that the respondent has a

history of alcohol abuse where he drinks to an excess, it is apparent that the respondent will

not be able to provide an environment of discipline for the child, and therefore primary

custody should be granted to the petitioner instead.

 E. THE RESPONDENT WILL NOT BE ABLE TO REFRAIN FROM

DISPARAGING REMARKS IN FRONT OF THE CHILD ABOUT THE

PETITIONER.

S.61.13(3)(r) requires the Court to consider whether the parent having custody would be able

to refrain from making disparaging comment about the other parent in front of the child. The

respondent has been physically abusive towards the petitioner on several occasions in the

past, which suggests that he harbors feelings of deep resentment and negative feels towards

the petitioner for a long time. Therefore it is highly likely that the respondent if given custody

would make disparaging remarks about the petitioner in front of the child if primary custody

is granted in his favor.

F. THE CHILD IS BE INCONVENIENCED BY THE RESPONDENT’S

CHANGE IN SEXUAL ORIENTATION.

S.61.13(3)(p) requires the court to consider whether a parent would be involved in the child’s

school and extracurricular activities. It should be noted that as per the expert testimony of the

Dr. Frank Edwards, it is likely that Chastity would face considerable teasing at school

because of the respondent’s change in orientation after being involved in a heterosexual

marriage, which would hamper Chastity’s school and extracurricular activities.

G. THE COURT SHOULD NOT ATTACH MUCH CONSIDERATION TO

CHASTITY’S PERSONAL PREFERENCE TO STAY WITH THE

DEFENDANT

S.61.13(3)(i) allows the court to take into consideration the preference of the child. However,

as per Muniz v. Muniz (2001) Fla. App. LEXIS 4019, as per Florida law the preference of the

child by itself without other supporting circumstances is not enough to decide the custody of

children. As pleaded above by the petitioner, the respondent is unsuitable to be the primary
custodian of Chastity for several reasons, and therefore the isolated fact that Chastity has

expressed a preference to live with the Respondent should be given diminished importance

by the Court.

III. WHETHER THE PETITIONER’S REQUEST TO RELOCATE WITH CHILD

SHOULD BE GRANTED BY THE COURT?

As per s. 61.13001 there are several circumstances due to which the petitioner should be

allowed to relocate with the primary custody of Chastity by the Court.

A. THE RESPONDENT HAS A HISTORY OF DOMESTIC VIOLENCE AND

SUBSTANCE ABUSE

As per s. 61.13001(j), one the criteria for the Court to favor relocation, is if the other party

has had a history of substance abuse and domestic violence, as it is considered detrimental to

the child. The respondent has on several occasions physically abused the petitioner and also

has a history of excessive drinking, to the point of alcohol abuse.

B. THE RELOCATION IS REQUESTED FOR VALID REASONS

As per s. 61.13001(f) the court should consider the reasons that a party is requesting

relocation. The petitioner is seeking relocation for several reasons. Firstly, the sexual

orientation of the respondent has officially changed, and the respondent has also been

unfaithful by having a boyfriend during the subsistence of marriage. Further, the respondent

has also in the past physically abused the petitioner several times, and also has an excessive

drinking problem. All of these reasons should be considered valid by the court to grant

relocation.
 C. THE PREFERENCE OF THE CHILD SHOULD BE GIVEN DIMINISHED

IMPORTANCE BY THE COURT CONSIDERING OTHER

CIRCUMSTANCES

As per s. 61.13001(d), the preference of the child is considered as a factor for the Court to

consider granting permission to relocate. However, as per Muniz v. Muniz (2001) Fla. App.

LEXIS 4019, preference of a child is to be given diminished importance when there is

evidence to show that there are otherwise circumstances that could affect the long-term

wellbeing of the child such as domestic violence and substance abuse from the other partner.

IV. CONCLUSION

On the basis of the facts stated and arguments advanced it is submitted on behalf of the

petitioner that the Court awards primary residential custody to the petitioner and grants the

relocation application of the petitioner because –

 The petitioner has applied for relocation for valid reasons.

 The child would be subject to an environment of substance abuse with the respondent

which is undesirable, and may also endanger the wellbeing of the child. Further, this

would also hamper the respondent from providing the child with a disciplined

environment which is a concern of the law.

 It is undesirable as per law for the child to reside with a person like the petitioner who

has a history of domestic abuse.

 The child would be subjected to a lot of teasing by peers in her school because of a

change in her father’s sexual orientation, which would be detrimental for the child’s

mental health and education. Further, the respondent’s boyfriend would be living in

the same house in the foreseeable future after the divorce, and the child has herself
 stated that she feels “weird” around the respondent’s boyfriend, which would thus

detrimental for the home life of the child.

 The fact that the petitioner would earn less money than the defendant should not

matter, as the respondent would be responsible to provide child support to the

petitioner for the child.

 The personal preference of the child should as per law be given diminished

importance by the court in light of multiple adverse facts against the respondent.
 Florida Circuit Court for _____County

Civil Action No. _____________

IN RE THE MARRIAGE OF

SALLY BRIGHT PETITIONER

V. MEMORANDUM

JOHN BRIGHT RESPONDENT

Comes John Bright , by Counsel, and for his Memorandum states as follows:

I. FACTS

The petitioner Sally Bright has applied for divorce against the respondent Mr. John Bright.

The respondent urges the Court to take note of the following facts in its decision to award the

primary custody of the couple’s 14 year old daughter, Chastity.

The petitioner is moving to another part of the country, and as confirmed by the expert

testimony of Dr. Samuel Stoller in dispute that Chastity has expressly stated that she would

like to stay with the respondent, her father, because it would be difficult for her to abandon

her current school and friends and adjust to life in a new school.

The respondent earns significantly more than the petitioner, and has always been actively

involved in the Chastity’s day to day life to provide care and parental support. Further, the

fact that the respondent drinks on occasion has never endangered Chastity even while the

respondent has been involved in her day to day care.

 II. WHETHER IT WOULD BE IN THE BEST INTERESTS OF THE CHILD TO

REMAIN WITH THE PETITIONER OR THE RESPONDENT?

As per Florida Civil Practice and Procedure Code, s. 61.13 mandates that “the best interest of

the child shall be the primary consideration” in determining a time-sharing situation. It

provides several circumstances that the Court should consider.

A. THE COURT TO GIVE CONSIDERABLE WEIGHTAGE TO CHASTITY’S

PREFERENCE OF RESIDENCE

Section 61.13 3(i) directs the Court to consider, for the purposes of determining the best

interests of the child while forming a time-sharing schedule, the reasonable preference of the

child, if the Court is satisfied that the child is of sufficient intelligence, understanding and

experience to express a preference.

In the case of Greene v. Kelly (1998) Fla. App. LEXIS 7460, the decision of the Court in

modifying the time-sharing plan was heavily influenced by the preference of the daughter

who was 13 years old, and who because of her age and the fact that she had lived with her

father at the same for 13 years, according to the Court had enough experience to express a

reasonable preference. Similarly, in the present case, Chastity is 14 years old, and has lived

her entire life in her family home where her father, the respondent, will be staying after

marriage.

Therefore, following the decision in Green, the Court should attach heavy importance to the

preference expressed by Chastity, as confirmed by the express testimony that she would like

to stay with the respondent.

 B. THE FACT OF DOMESTIC VIOLENCE SHOULD NOT BE CONSIDERED

AS A DETERMINING FACT AGAINST THE RESPONDENT

The presumption against created against the respondent by s. 61.13 that it might be

detrimental for Chastity to remain with the respondent due to some acts of domestic violence

perpetrated by the husband, is a rebuttable presumption. S. 61.13 considers such a

presumption due to the negative effects of witnessing domestic violence by children.

However, Chastity has never witnessed the respondent physically hitting the petitioner.

Therefore Chastity has never been exposed to the detrimental effects of physical violence, as

she is not even aware that any domestic violence has ever taken place. Concurrently

considering the fact that the respondent has always been a responsible father, adequate

provider and regularly involved in the day to day life and care of Chastity, the presumption

under s. 61.13 should be considered successfully rebutted. Therefore the Court should not

consider the fact of domestic violence against the respondent when deciding the custody.

C. THE FACT THAT THE RESPONDENT INTAKES ALCOHOL ON

OCCASION SHOULD NOT BE CONSIDERED AS A DETERMINING

FACTOR AGAINST THE RESPONDENT

It is not a matter in dispute that the respondent has always been an involved parent in the day

to day care and support of Chastity and has always fulfilled his parent requirements to a

satisfactory degree. There has been no incidents in the past where the respondent’s drinking

has caused any situation where the child’s needs and interests have suffered. Therefore in the

absence of other considerations, the Court should not attach determining weightage to the fact

that the respondent drank on occasion, as it does not cause interference with the well-being of

the child.
 D. IT IS DESIRABLE FOR CHASTITY TO CONTINUE LIVING WHERE SHE

CURRENTLY IS

S. 61.13 (d) requires the Court to consider “the length of time that the child has lived in a

stable, satisfactory environment and the desire to maintain continuity”, s. 61.13(h) considers

“the home school and community record of the child”, and s. 61.13(s) requires the Court to

consider “the developmental stages and needs of the child and demonstrated capacity of each

parent to meet the child’s developmental needs.

All of these considerations are in the favor of the respondent, and against the petitioner.

Chastity has spent her entire life where the respondent resides, and is now a teenager which is

a distinct developmental stage where the child starts to become less dependent on the parents

on more on her social circle, such as friends from school and neighborhood. Further, the

respondent has always been an involved parent and has demonstrated his capacity to meet the

child’s needs. Further, as per the expert testimony of Dr. Samuel Stoller, it is in Chastity’s

best interests that she remains with her father as it is a “safe, secure environment she is

familiar with” and would have considerable difficulty moving to a new school and making

new friends.

III. WHETHER THE COURT SHOULD GRANT THE PETITIONER’S

APPLICATION TO RELOCATE WITH CHASTITY

s. 61.13001 requires the Court to consider several circumstances, which go against the

petitioner’s application to relocate with Chastity. S. 61.13001(8) imposes a burden on the

parent seeking relocation to prove that the move will be beneficial to the child, which the

petitioner shall not be able to discharge.

 A. THE RELOCATION WOULD SEVERELY AFFECT THE RELATIONSHIP

OF THE CHILD WITH THE RESPONDENT.

S. 61.13001(7)(a)&(c) considers the extent of the involvement and the relationship of the

child with the non-relating parent, the respondent, and the extent to which such relationship

will be affected taking into consideration logistics. The petitioner is moving to a different part

of the county. Considering that the respondent has always been an involved parent, this move

will severely affect Chastity’s relationship with the respondent.

B. THE CHILD’S PREFERENCE SHOULD BE GIVEN SUBSTANTIAL

WEIGHTAGE.

Chastity has expressed a preference to remain with her father. S. 61.13001(7)(b) considers as

a factor to decide relation, the child’s preference taking into account the age and maturity of

child. The case of Greene v. Kelly (1998) Fla. App. LEXIS 7460 has already established that

the age of 13 is considered to mature enough for the Court to attach significant weightage to

the preference of the child. Chastity is 14, and hence should be considered mature enough for

the court to take into account her preference of residence.

C. THE RELOCATION WOULD AFFECT THE DEVELOPMENT OF THE

CHILD

As per S. 61.13001(7)(b), the Court has to consider the age and development of the child.

Chastity is 14, an age where her relationship with her friends, peers and social circle outside

the family is a significant part of her life. It has already been testified by Dr. Samuel Stoller

that it would be in Chastity’s best interest to remain with the respondent as it would be

difficult for her to make friends and adjust to a new school.

 D. THE RELOCATION WOULD NOT BE BENEFICIAL FOR THE QUALITY

OF LIFE AND FUTURE OPPORTUNITIES TO CHASTITY.

S. 61.13001(7)(e) requires that there should be an enhancement of the quality of life and

better educational opportunities for the child after relocation, s. 61.13001(7)(g) considers the

the employment and economic circumstances of the parents and s. 61.13001(7)(i) considers

career opportunities for the child after relocation. All these factors are in favor of the

respondent. He earns three times the money as the petitioner and can provide a better quality

of life and educational opportunities for Chastity. Even considering the respondent may be

ordered to pay child support, considering he has always been an involved father he will still

be able to provide a better day to day quality of life for Chasity, which the petitioner simply

will not be able to match.

IV. CONCLUSION

On the basis of the facts stated and arguments advanced it is submitted that the Court awards

primary residential custody to the respondent and denies the relocation application of the

petitioner because -

 The respondent has always been an involved and responsible father.

 The respondent is better suited financially to provide better quality of life and

educational opportunities for the child.

 The child is 14 years old and has expressly stated their preference to reside with the

respondent.

 Expert testimony has conclusively determined that it is in the child’s best interests to

remain with the father.