
    Mary J. MAHNKE f/k/a Mary J. Rice, Appellant, v. Edward A. RICE, Appellee.
    No. 96-3197.
    District Court of Appeal of Florida, Fifth District.
    Jan. 8, 1998.
    Patricia L. Strowbridge of Patricia L.Strowbridge, P.A., Orlando, for Appellant.
    J. Cheney Mason of J. Cheney Mason, P.A., Orlando, for Appellee.
   PER CURIAM.

We reverse the final order entered by the trial court denying the appellant’s motion to modify a final judgment of dissolution. A majority of the panel agrees that Mize v. Mize, 621 So.2d 417 (Fla.1993) controls this case. A majority also agrees that a new hearing must be held. The cause is remanded for a new hearing.

REVERSED AND REMANDED.

COBB, J., concurs specially with opinion.

HARRIS, J., concurs specially with opinion.

THOMPSON, J., concurs in part and dissents in part with opinion.

COBB, Judge,

concurring specially.

The controlling law in regard to the issue posed by this appeal is set forth in the last paragraph of the opinion in Russenberger v. Russenberger, 669 So.2d 1044, 1047 (Fla.1996):

In conclusion, we hold that upon a demonstration of good faith as described in Mize of a custodial parent seeking to relocate, that parent is entitled to a presumption in favor of his request to relocate with the minor children. However, that presumption is rebuttable, and in considering such a request and any opposition to it, the trial court should weigh the Hill [v. Hill, 548 So.2d 705 (Fla. 3d DCA 1989)] factors on a case-by-case basis.

For some reason, which is not clear to me, the trial judge found that Mize v. Mize, 621 So.2d 417 (Fla.1993) would not be applicable to the facts of this case. The trial court, however, did make a finding, after hearing extensive testimony during a two-day trial, that the best interest of the children would not be served by relocation to Illinois. The trial court did not order a change of custody, thereby leaving the primary custodian, the mother, with the option of retaining primary custody of the children in Florida or moving without them to Illinois.

Given the erroneous standard applied by the trial court, its failure to specifically consider each of the six factors enumerated in Mize, and its erroneous exclusion of the court reporter and the parties from certain of the trial proceedings, I concur in reversal of the trial court’s order. On remand the trial court should hold a new hearing with appropriate consideration of Russenberger and Mize.

HARRIS, Judge,

concurring specially.

I agree with the per curiam opinion that the judgment below should be reversed for a new hearing. I also agree that a majority of this panel holds that such hearing must be conducted pursuant to Mize v. Mize, 621 So.2d 417 (Fla.1993). I suggest, however, that on remand, if the court permits the mother to relocate with the child or if the court decides to transfer custody to the father because of the mother’s relocation, then the trial court should consider the factors enumerated in section 61.13(3), Florida Statutes, and not rely solely on the Hill factors. It is as wrong, in my view, to permit a parent who has not prevailed under a section 61.13(3) analysis, to remove the child from the state based only on the Hill factors as it is to require such parent to forfeit the child if the move is not approved.

This is yet another case in which we must decide whether the custodial parent may relocate with the child when the final judgment contains a relocation reservation. It is important to our deliberation, I submit, to consider how that reservation came about. If the court at the time of dissolution made a determination that the custodial parent should have residential custody under the best interest of the child criteria contained in section 61.13(3), then reference to the. Hill factors alone would be sufficient to determine whether the move out of state should be permitted. Under the Hill factors, a move should be permitted if it is not for a vindictive purpose and if the move is based on a “founded belief that relocation is best for the well being of [the custodial] parent and the children.” [Emphasis added.] Russenberger v. Russenberger, 669 So.2d 1044, 1046 (Fla.1996).

But this case, as did Hagins v. Hagins, 678 So.2d 479 (Fla. 5th DCA 1996), involves a relocation restriction based on a stipulation which maintained the status quo (the child must remain in the locale until further action) and reserved, at least by implication, a hearing based on the section 61.13(3) criteria for residential custody for future consideration when and if relocation was requested. As in Hagins, the final judgment in this case merely incorporated the parties’ agreement that the custodial parent (the mother) could not change the primary physical residency of the minor child without either the written consent of the father or appropriate court order. As in Hagins, there was no determination by the court in the final judgment of dissolution as to which parent under the section 61.13(3) criteria should have custody for the best interest of the child. Rather the section 61.13(3) best interest determination was deferred until relocation became an issue because neither parents chose to contest for custody so long as the mother and child remained in the central Florida area. It is for the child’s best interest, and not the parents’, that custody should be based on this statutory criteria. Even if it is possible for a parent to waive a child’s right to have custody considered under section 61.13(3), such waiver should not be presumed merely because a parent stipulates to a conditional custody arrangement — particularly when the condition no longer exists.

Also, as in Hagins, the mother did not agree not to relocate the child’s primary physical residence in the future nor did she agree that if she moved from central Florida that the child’s best interest would be served by transferring custody to the father. The parties merely agreed, and the court approved their agreement, that there would be no relocation unless the father consented or, if he did not consent, until an appropriate hearing is held by the court at which time the father should be given the opportunity to assert his right to “the same consideration” as the mother to be the residential custodian and the court determines the best interest of the child after taking relocation into consideration as a factor.

Mize v. Mize, 621 So.2d 417 (Fla.1993), does not discuss this issue in the context of a stipulated, conditional grant of primary residential custody. But it does distinguish between those cases in which one is awarded custody without a relocation reservation (no change of circumstances required) and those where such reservation is included in the final judgment after “litigation” (a change of circumstances required). This case, and those like it, present a third category — a category in which there is custody coupled with a relocation restriction entered into by stipulation and not imposed by litigation. Therefore, the section 61.13(3) criteria have neither been waived by either parent nor properly weighed by the trial court.

The supreme court has determined that if the custodial parent has received custody outright (no reservation against relocation), then a consideration of the Hill factors is sufficient to grant authority to relocate even without a change of circumstances. This would appear to be true whether the outright custody was obtained through default, stipulation, or litigation. And the supreme court has ruled that if one parent is awarded primary custody through litigation (apparently based on the section 61.13(3) criteria), then, if a change of circumstances can be proved, a consideration of only the Hill factors may justify relocation. But the supreme court has not yet discussed the rights of the parties who agree to a custody determination conditioned on the parties remaining in the same locale and reserve the best interest hearing until relocation is requested. In such ease, are the Hill factors even relevant? Which parent is more likely to encourage visitation with the noncustodial parent; what are the love, affection and other emotional ties between the parents and the child; what is the relative capacity and disposition of the parents to provide the child with his or her material needs; what is the relative permanence, as a family unit, of the proposed custodial home; what is the relative moral fitness of the parents’; what is the relative mental and physical health of the parents’; and what is the reasonable preference of the child? These questions, not so important if the parents live close together so that the child can spend considerable time with both parents and the noncustodial parent can monitor the child’s condition and progress, become critical when the child is to be moved a great distance away. The Hill factors simply do not address these questions.

The holding by the First District in Landingham v. Landingham, 685 So.2d 946 (Fla. 1st DCA 1996) acknowledges that the best interest of the child (and not merely whether the move is thought by the primary custodian to be in such custodian’s and the child’s best interests) should prevail even in relocation cases.

It might be suggested that the Hill factors include a “best interest” standard sufficient to meet the concerns of section 61.13(3). It simply does not. The sixth Hill factor is: “whether the move is in the best interest of the child.” Obviously, a move may make a bad situation for the child better — but the child may still be better off with the other parent if relocation occurs. Hill makes it clear, by stating that its best interest factor is only a generalized summary of its first five factors, that the relative merits of the parents is not an issue. Its “best interest” analysis consists of determining (1) whether the move would be likely to improve the general quality of life for both the primary residential spouse and the child; (2) whether the motive for the move was to defeat visitation; (3) whether substitute visitation would be adequate in continuing a meaningful relationship with the noncustodial parent, and (5) whether transportation is feasible. This is a very limited concept of “the best interest of the child” and does not adequately substitute for the protection provided by section 61.13(3).

There is a strong public policy reason to distinguish between an outright custody determination (whether entered by stipulation or imposed after litigation) and a stipulated, provisional custody arrangement. Assume that a father who has a particularly close relationship with his children — he reads them their stories and puts them to bed, helps them with their homework, takes them to their school activities and their medical appointments, etc. — concludes that he can continue to be the same interested and involved father even if the children remain in the mother’s primary care so long as the children continue to reside in the same community. Because such father believes that harmony between the parents will benefit the children, that they will benefit from remaining in the marital home (most often awarded to the mother), and that their interest can be adequately assured if he is available to monitor their care, supplement their needs, and provide his encouragement and moral support as needed, he agrees to the conditional (no relocation without a section 61.13(3) best interest hearing being first conducted) primary residential custody being awarded to the mother. If the Russenberger presumption which is based only on the Hill factors and does not consider the section 61.13(3) statutory criteria is applied to this situation, then a parent who believes that he or she would be the better custodian under the section 61.13(3) criteria and could better meet the needs of the children should the other parent relocate to another area, would be encouraged, because of the adverse presumption, to contest every custody case. This is because the Hill factors do not compare the relative merits of the mother and father in deciding which would be the better parent or even which could provide for the children’s best interest in the event of relocation. The Hill factors only consider the residential custodial parent’s attitude (vindictive or not) and compare the custodial parent’s ability to provide appropriate custody then and now. In other words, the Hill factors assume that the custodial parent has prevailed under a section 61.18(3) analysis and are only designed to determine whether the proposed relocation will adversely affect that decision.

While I agree that the numerous errors below mandate a new trial, I do not believe that it is essential to show a change of circumstances when the parties contemplated at the time of the dissolution that a future move might occur and agreed to reserve the ultimate custody decision until the request to move wifh the child is made. The request to move itself triggers the need for the deferred hearing. A true “best interest” hearing should now be conducted. CASE NO. 96-3197

THOMPSON, Judge,

concurring in part, dissenting in part.

I agree that the case should be remanded. However, there are several issues on appeal worthy of discussion: whether Mize v. Mize, 621 So.2d 417 (Fla.1993), applies to this case; if so; whether the trial court applied the correct standards under Mize; and whether the trial court erred in prohibiting the presence of court reporters during proceedings held in chambers. Because of my view of Mize, section 61.13(3), and the facts of this case, I disagree with Judge Harris that the trial court should conduct another evidentia-ry hearing. The record shows that all of the factors were before the trial court including “the best interests of the child.” I would remand with instructions that the trial court enter an order allowing Mary to remove the children from the state and to modify the judgment to ensure adequate visitation by Edward Rice (the former husband). ■

Judge Harris writes that neither parent has prevailed “under a sections 61.13(3) analysis,” and that therefore a rehearing is necessary to apply section 61.13(3) factors in addition to the Hill v. Hill, 548 So.2d 705 (Fla. 3d DCA 1989), rev. denied, 560 So.2d 233 (Fla.1990), factors. I add these addition-aT facts to support my argument that a rehearing is unnecessary.

FACTS

Mary J. Mahnke and Edward Rice petitioned the trial court in 1993 to dissolve their marriage. As part of the proceedings, Mary and Rice negotiated a marital settlement agreement concerning, inter alia, child custody, visitation, and relocation of the children. The marital settlement agreement was incorporated into the final judgment. The part of the agreement germane to my review is the following restriction on relocating the children:

6. GEOGRAPHICAL RESTRICTION.
Neither party shall change the primary physical residency of the minor children from the Central Florida area, defined as a 50-mile radius of Orlando, Florida, without either the written consent of the other party or appropriate Court Order, normal vacation periods excepted.

On 27 February 1996, Mary petitioned for modification of the final judgment of dissolution, alleging that there had been a material change in circumstances prompting her need for relief from the geographical restriction. Mary had remarried and her husband, Michael Mahnke, had transferred his employment from Orlando, Florida, to Illinois. Mahnke was a 23-year federal employee whom the United States Postal Service had employed (“USPS”) for 18 years. Mary also was an 18-year employee of the USPS. At the time of the hearing, Mahnke had been in the new position in Illinois for six months and had purchased a home near his work place. Mary remained in a house she rented from her parents for $800 per month and continued her employment with the USPS. Her parents lived nearby and helped care for the two children. Mahnke testified that the USPS had promoted him to a position comparable to the one he had in Florida, and that Mary would have a position at the same facility once she moved to Illinois. He also testified that they could not afford to maintain two homes indefinitely. Mary testified that the home they purchased in Illinois was very close to a church where they would worship and was better than a comparably priced home in Orlando. Further, the nearby elementary school had smaller classes than the schools the children attended in Orlando, and Mary considered the school to be better than those in Orlando. Mary submitted a visitation plan that would allow Rice to see the children 91 days of the 102 days per year that the children would be out of school. Mary and Mahnke agreed to pay for three lengthy visits so the children could spend 71 of the 91 days with Rice. They also agreed to pay for all the visitations if the court so ordered.

Rice countered with a motion to enforce the restriction. He testified that he also worked for the USPS and was very involved in the lives of his children. He exercised 124 days of visitation in 1994, and 112 days in 1995. To allow the children to move would devastate his opportunity to exercise meaningful visitations, he testified. Rice had remarried, and his two children got along well with his stepson. Rice also testified that he could not afford to fly to Illinois monthly or quarterly to visit with his children. He argued the move was voluntary and required only because Mahnke had violated USPS rules. Mahnke had to relocate or be fired. Further, Mahnke did not try to find similar employment in Central Florida other than to review ads in the newspaper and talk with a career counselor. Therefore, Rice argued, the move was not permissible because there was no substantial change in circumstances.

Besides the parties, the court received the testimony of Dr. David J. Fleisehmann, a clinical psychologist, and Tim Hartung, an attorney who was the court-appointed guardian ad litem for the children. Dr. Fleiseh-mann testified that he had provided marriage counseling to Mary and Rice. He had also counseled the children regarding Mary’s petition. Dr. Fleisehmann opined that the two children would “weather the move well.”' Attorney Hartung testified that the children looked forward to the move, but that one child would miss her friends.

The trial judge did not announce his ruling at the close of the hearing. Rather, the judge met with the parties’ attorneys in chambers to discuss his decision before entering a written order. The trial court did not permit the court reporter hired by Mary’s attorney to attend the hearing though the attorney objected. The trial court also excluded the parties because the court felt it would not be in their best interest. However, the record contains a statement of proceedings approved by the judge and both attorneys. See Fla. R.App. P. 9.200(b)4. The statement reflects the following legal conclusions by the court:

5. The believable, credible evidence indicates that the “Mize question” was considered at the time of the parties’ separation, agreement and subsequent divorce. Therefore, Mize is not controlling here on these facts.
6. The correct standard to be applied is substantial change of circumstances, which has not been proven.
7. It is not in the best interests of the children to lose the frequent, continuous and meaningful contact with the Former Husband and the grandparents.
8. The believable, credible evidence establishes that the desired move by the Former Wife was voluntary and the reasons for same do not constitute grounds sufficient to establish a substantial change of circumstances.
11. The maternal grandparents of the subject children hereto have had continuous, meaningful, and frequent relationships with the minor children.
12. The Court specifically finds that based on all of the evidence presented over the two (2) day trial that it is not in the best interest of the children to relocate to the State of Illinois.

The trial court granted Rice’s motion to enforce the geographic restriction and denied Mary’s petition. The court also scheduled another hearing with the lawyers to discuss the form of the order. Again, neither the parties nor a court reporter was allowed to attend. The final order denying Mary’s supplemental petition for modification contained the findings from the statement of proceedings.

WHETHER THE MIZE ANALYSIS APPLIES TO THIS CASE.

The trial court determined that Mize did not control its consideration of the move. The trial court found that the parties had been aware of Mize at the time the marital settlement agreement was drafted and executed. Therefore, the court concluded, the correct standard to apply was whether a “substantial change of circumstances had been shown.” By applying this standard, the trial court determined Mary did not meet her burden of proof. This was error.

Before Mize, Florida’s district courts of appeal applied different standards to requests to relocate with a minor child. Id. at 1044. In Mize, the supreme court adopted the Third District’s approach favoring relocation in Hill. The supreme court stated that the use of the six factors discussed in Hill would help the court in determining if the move was in the best interest of the child. Mize at 420. Like this case, Mize involved an agreement not to relocate the children from the state without approval of the noncustodial parent or the court. Thus, I fail to see the logic of the trial court when it determined that Mize would not apply to this ease.

Before Mize, the substantial change of circumstances was one test for relocation. See, e.g., Mize v. Mize, 589 So.2d 959 (Fla. 5th DCA 1991), and eases cited therein; Zediker v. Zediker, 444 So.2d 1034 (Fla. 1st DCA 1984). In Mize, the supreme court held that where the final judgment contains a geographic restriction, the primary residential parent “must show a change in circumstances to justify the relocation.” Mize at 419-420. It may be that the trial court considered the Mize factors and concluded that the move would not be in the best interest of the children, but that is not what the trial court wrote. The order is without discussion or consideration of the six factors. It was error for the trial court not to apply the Mize factors to this case. See Card v. Card, 659 So.2d 1228 (Fla. 5th DCA 1995) (holding that if a mother demonstrates that the relocation complied with the requirements of Mize and was not for vindictiveness, the trial court’s order denying the move should be reversed.)

WHETHER THE TRIAL COURT NEVERTHELESS APPLIED THE CORRECT STANDARD UNDER MIZE TO DETERMINE IF THE MOVE WAS IN THE BEST INTEREST OF THE CHILDREN.

Although the trial court wrote that Mize did hot apply, it went on to discuss “the substantial change of circumstances” standard. Rice argues that even if not properly identified as the Mize factors, the trial court nevertheless made a correct finding that the move was not in the best .interest of the children.' Again, I disagree.

The Florida Supreme Court recently reiterated that Mize governs relocation cases. Russenberger v. Russenberger, 669 So.2d 1044, 1046 (Fla.1996). Mize holds that a custodial parent’s request to relocate generally should be granted if the move is well-intentioned, not for any vindictive purpose, and believed in good faith to be in the parent’s and child’s best interests. Mize, 621 So.2d at 419.

Under Mize, Mary had to show that there was no vindictive purpose behind the move to Illinois, and that she had a founded belief that the move was in the best interests of her and her children. Because of the geographical restriction, she had the additional burden of showing a change of circumstances justifying the relocation to Illinois. The record demonstrates that Mary made the required showing under Mize, and, I would argue, section 61.13(3). Mary’s reason for seeking relocation was to be with her husband. The husband’s reason for relocating was purely professional, and there is no evidence demonstrating a vindictive purpose for the move. Relocating to Illinois is in her best interests and those of her children because of the emotional and financial burdens on her family if she remains in Florida. In addition, the circumstances under which Michael accepted the position in Illinois sufficiently justify the relocation. Contrary to the trial court’s conclusion, Mary did sustain her burden under the controlling legal standard, Mize.

The analysis does not end there. Having carried her burden under Mize, Mary is entitled to a rebuttable “presumption in favor of [her] request to relocate” with children. Russenberger, 669 So.2d at 1047. The factors enumerated in Mize are to be considered and weighed to determine whether the move is in the children’s best interests.

The move would improve the children’s general quality of life. Currently, their family is divided. Since February 1996, the family has had the financial burden of maintaining two households. Continued separation would increase the burden. See Card, 659 So.2d at 1231. Permitting the move would ease the emotional and financial stress on the family, thus improving the children’s quality of life. In addition, Michael testified that due to improved work schedules, they will not need before and after school care for the children. Also, both he and Mary described the new locale as a smaller, more family-oriented community than Orlando.

There is no evidence showing that Mary’s purpose in relocating is to defeat the children’s visitation with Edward, or that she would be unlikely to comply with substitute visitation arrangements once out of state. Rice did testify that he often had difficulty scheduling his floating visitation day each week. He also stated that Mary threatened to “move as far away as legally possible to interfere with my weekday visits” if the court denied her petition. However, Mary did not interfere with or object to Edward’s scheduled visits with the children. It also appears that despite any scheduling conflict, Edward nonetheless received his weekly floating visitation day. Moreover, Mary’s threat to move to the perimeter of the 50-mile area does not indicate an intent not to comply with court-ordered visitation if .permitted to relocate.

Mary’s proposed visitation schedule allows three month's of visitation during the year. The visits are scheduled in large blocks of time coinciding with the children’s school holidays. In addition, Mary anticipated visits to Florida which would afford Edward additional time with the children.

The trial court found that Edward has had “frequent, continuous, and meaningful” contact with the children. This is certainly an appropriate consideration. However, as this court has recognized:

Mize does not require the maintenance of frequent and continuing contact. Rather, it requires an assessment of, among other things, whether the substitute visitation proposed is adequate to foster a meaningful and continuing relationship. Mize recognizes the difficulties which arise where distant moves are contemplated by the custodial parent. Mize seeks to provide trial courts with guidance in providing for the child’s best interests and in reaching what might not be an optimum result for each of those involved.

Card, 659 So.2d at 1231. Dr. Fleischmann testified that the schedule proposed by Mary is adequate to protect the relationship between the children and their father. In addition, though Edward stated that he could not afford even quarterly trips to Illinois, Mary testified that she can pay all transportation costs,'if so ordered.

Finally, as Judge Harris noted in Hagins v. Hagins, 678 So.2d 479 (Fla. 5th DCA 1996), “[cjertainly, it would be in the best interest of the children if the parents continued to reside close enough so that ‘frequent and continuing contact’ with both parents could be achieved. However, circumstances sometimes dictate that such is not possible.” Hagins, 678 So.2d at 481 (Harris, J., concurring). The instant ease is one in which circumstances dictate that the parents cannot reside near each other. Here, it is in the best interests of the children that they and their mother are allowed to relocate to Illinois. Because Mary has met the criteria of Mize and Russenberger, her petition should be granted.

Based upon these facts, I disagree with Judge Harris that a rehearing is necessary upon remand to consider section 61.13(3) factors. First, the trial court accepted the marital settlement agreement’ concerning child custody, visitation and relocation of the children. The trial court was not required to accept the agreement merely because it was presented by the parties and their lawyers. Based upon this record, we do not know if the trial court considered the section 61.13(3) factors at the time the agreement was presented. Since there is no requirement that the court enter written findings, Jones v. Jones, 674 So.2d 770 (Fla. 5th DCA 1996); Murphy v. Murphy, 621 So.2d 455 (Fla. 4th DCA 1993), and since the parties have not requested that the trial court redetermine custody based upon section 61.13(3), I would not require rehearing. Section 61.13(2)(b)2. requires that parental responsibility be shared by both parents unless it is detrimental to the child. Both parents are to be given the same consideration. Id. In this ease, there is no doubt that both parents have an interest in the children and have been active in the fives of their children. Moreover, both parties have presented all the evidence considered by section 61.13(3). An additional hearing to “litigate” custody will not present the trial judge with either new information or a better assessment of the parties.

WHETHER THE TRIAL COURT ERRED IN PROHIBITING THE PRESENCE OF COURT REPORTERS DURING PROCEEDINGS HELD IN CHAMBERS.

I find no basis for the trial court’s having closed the courtroom to the parties or court reporters. Philosophically, Florida is a leader in ensuring that all courts of the state are open to all parties. Article I, section 21 of the Florida Constitution provides:

The courts shall be open to every person for redress "of any injury, and justice shall be administered without sale, denial or delay.

The Florida Supreme Court has authorized cameras in the courtroom, Florida Rule of Judicial Administration 2.170, and has recently developed, along with Florida State University, the “Gavel To Gavel” program which allows the public to hear and see supreme court oral arguments on the internet. In welcoming visitors to the court’s website, Chief Justice Kogan wrote:

More than any other state, Florida is committed to opening its courthouse doors ever voider to the public. Our efforts to improve access now are recognized as an international model studied by nations as far away as Peru and Ireland. Through our partnership with Florida State University, we are proud to offer the citizens of Florida a chance to see the inner workings of their supreme court in Gavel-to-Gavel live coverage.

(Emphasis added).

At least one district court of appeal has authorized the examination and cross-examination of witnesses via satellite. Harrell v. State, 689 So.2d 400 (Fla. Bd DCA), rev. granted, 699 So.2d 1373 (Fla.1997). To exclude parties who want to view the proceedings and assist their counsel runs counter to the philosophy of the Florida court system where public access, as expressed by the Chief Justice, is paramount to the mission of the court.

There is also a practical reason for encouraging the attendance of court reporters: to ensure an appellate record as required by rule 9.200, Florida Rules of Appellate Practice. Without a record, the court may require that the case be tried again. Ariko v. Nicholson, 632 So.2d 174 (Fla. 5th DCA 1994). Or, a party who fails to provide the appellate court with a transcript of the proceedings may lose because the appellate court must presume the trial court’s findings are correct unless there is an error on the face of the judgment. Hirsch v. Hirsch, 642 So.2d 20 (Fla. 5th DCA 1994). Although we would not reverse on this basis because a statement of the evidence or proceedings was used instead of a transcript, it is preferable, especially when the parties have provided a court reporter, to have a transcript.

Finally, and most important, there is an appearance of impropriety when a court excludes parties and an available court reporter hired by a party who wants the proceedings recorded. Although lawyers for both parties were present, excluding the litigants and conducting a hearing in their absence undermines confidence in the judiciary. Certainly, it does not “promote public confidence in the integrity and impartiality of the judiciary.” Fla.Code Jud. Conduct, Canon 2A; see also Hanson v. Hanson, 678 So.2d 522 (Fla. 5th DCA 1996). Judges should allow parties and court reporters to appear at all sessions of court unless the court seals the proceedings or a statute requires exclusion.

In summary, I would quash the order preventing Mary from moving the children from the state and would remand with instructions that the court enter an order allowing Mary to remove the children and modifying the judgment to protect Rice’s visitation. I would not require a rehearing to address the factors in 61.13(3). Practically speaking in this case, the court has heard evidence from both parents to apply all factors. Finally, I would make it clear that the parties and their court reporters should be allowed to attend all sessions of court. 
      
      . The problem with Judge Thompson's view that another hearing should not be held is that it would result in the preemption of the function of the trial court of evaluating the candor and credibility of the trial witnesses.
     
      
      . Section 61.13(2)(b), Florida Statutes.
     
      
      . I submit that a "litigated” issue is one which was resolved by the court after submission of evidence. As stated in Potter v. Trudeau, 516 N.W.2d 19 (Wis.App.1994): "We conclude ... that ‘actually litigate’ means a trial or hearing on an issue which requires the trier of fact to resolve by fact finding."
     
      
      .The six factors were adopted from the Third District's decision in Hill v. Hill, 548 So.2d 705 (Fla. 3d DCA 1989) (Schwartz, J., specially concurring). rev. denied, 560 So.2d 233 (Fla.1990). The factors are:
      1. Whether the move would be likely to improve the general quality of life for both the primary residential spouse and the children.
      2. Whether the motive for seeking the move is for the express purpose of defeating visitation.
      3. Whether the custodial parent, once out of the jurisdiction, will be likely to comply with any substitute visitation arrangements.
      4. Whether the substitute visitation will be adequate to foster a continuing meaningful relationship between the child or children and the noncustodial parent.
      5. Whether the cost of transportation is financially affordable by one or both of the parents.
      6. Whether the move is in the best interests of the child.
     
      
      . Effective 1 July 1997, section 61.13, Florida Statutes, was amended to provide:
      61.13. Custody and support of children; visitation rights; power of court in making order
      
        (2)
      (d) No presumption shall arise in favor of or against a request to relocate when a primary residential parent seeks to move the child and the move will materially affect the current schedule of contact and access with the secondary residential parent. In malting a determination as to whether the primary residential parent may relocate with a child, the court must consider the following factors:
      1. Whether the move would he likely to improve the general quality of life for both the residential parent and the child.
      2. The extent to which visitation rights have been allowed and exercised.
      3. Whether the primary residential parent, once out of the jurisdiction, will be likely to comply with any substitute visitation arrangements.
      4. Whether the substitute visitation will be adequate to foster a continuing meaningful relationship between the child and the secondary residential parent.
      5. Whether the cost of transportation is financially affordable by one or both parties.
      6. Whether the move is in the best interests of the child. Ch. 97-242, § 1, Laws of Fla.
     
      
      . See Note 2, supra.
      
     