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Restrictions on Moving With Children
Divorcing spouses can typically move out of the area without any strings attached, but the rule is different when there are minor children involved. If one parent moves out of state with the child and the other parent stays behind, it’s unlikely that the child will be able to continue the same timesharing schedule with both parents. Additionally, the time and expense of travel increase significantly. At the same time, should a parent with primary custody be forced to leave children with the other parent if their career requires them to relocate? Florida Statutes section 61.13001 provides the framework needed to answer these questions.
How Does the Relocation Statute Work?
How Long Until the Court Will Hear My Case?
The relocation statute accelerates the time schedule to have the matter heard by the court. The moving party can file for a motion for a temporary order to relocate, which must be heard within 30 days, or can set the matter for a trial within 90 days. Although the temporary hearing typically arrives quicker, the matter must still proceed to a final hearing. The court will hear evidence again and may reverse its ruling at the final hearing; however, it is unlikely in practice. It’s quite difficult to “un-ring the bell” so to speak, and deny the relocation at the final hearing after the court granted the temporary motion, particularly when the relocating party has already moved across the country at the time of the final hearing.
Recent Florida Case on Improper Relocation
In one recent Florida case, a mother moved her children to another state without prior court approval. The father filed a motion to hold the mother in contempt because she moved without court approval. The mother then filed a belated request to relocate. The court in that case found that the mother’s reasons for relocating were weak, and there was evidence that the move might not be in the children’s best interests—particularly due to the loss of the relationship with the father. The court also noted that there was evidence the mother might not comply with the substitute visitation, given her track record on timesharing, so the court denied her request, meaning the mother was required to move back to the area, or come to an agreement with the father that allowed her to remain there.
First, there is no presumption either way in a relocation case, if the proposed relocation materially affects the current timesharing plan. The parent who wants to relocate must show, by a preponderance of the evidence, that relocation is in the best interest of the child. If that burden of proof is met, the burden shifts to the nonrelocating parent or other people to show by a preponderance of the evidence that the proposed relocation is not in the best interest of the child.
Clearly, the focal point is what is in the child’s best interest, which is not necessarily what is in the parent’s best interest. To make this determination, the court will consider the required factors, which are:
- The nature, quality, extent of involvement, and duration of the child’s relationship with the parent or other person proposing to relocate with the child and with the nonrelocating parent. . . .
- The age and developmental stage of the child, the needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development. . . .
- The feasibility of preserving the relationship between the nonrelocating parent or other person and the child through substitute arrangements . . . whether those factors are sufficient to foster a continuing meaningful relationship between the child and the nonrelocating parent . . . and the likelihood of compliance with the substitute arrangements by the relocating parent or other person once he or she is out of the jurisdiction of the court.
- The child’s preference, taking into consideration the age and maturity of the child.
- Whether the relocation will enhance the general quality of life for both the parent or other person seeking the relocation and the child, including, but not limited to, financial or emotional benefits or educational opportunities.
- The reasons each parent or other person is seeking or opposing the relocation.
- The current employment and economic circumstances of each parent or other person and whether the proposed relocation is necessary to improve the economic circumstances of the parent or other person seeking relocation of the child.
- That the relocation is sought in good faith and the extent to which the objecting parent has fulfilled his or her financial obligations to the parent or other person seeking relocation, including child support, spousal support, and marital property and marital debt obligations.
- The career and other opportunities available to the objecting parent or another person if the relocation occurs.
- A history of substance abuse or domestic violence . . . by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.
- Any other factor affecting the best interest of the child or as set forth in s. 61.13.
Note that section 61.13 contains twenty additional statutory factors that the court must examine to determine an appropriate parenting plan that is in the best interest of the children, so the presentation can be complex, given the number of different factors the court may consider.
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Consult With an Experienced Orlando Relocation Lawyer
If you or your child’s other parent is attempting to relocate with a child, you should speak to an experienced family law attorney at The Spence Law Firm for a free consultation.
Florida Law on Relocating with a Child
Relocations Are Decided Under Section 61.13001
Many times during a dissolution of marriage case, one of the parents wants to relocate to another area with the children. When it comes to relocation with a child, the factors that a court takes into consideration are outlined in Florida Statutes s. 61.13001. Under this statute, although there are many factors the court looks at, the main focus of the court is always “The best interests of the child.” This means the judge must balance the custodial parent’s right to move for legitimate reasons with the non-relocating parent’s right to have meaningful timesharing with the children, to determine the best plan.
What Constitutes a Relocation?
First, section 61.13001 only applies in situations where there is an existing court order in place that establishes child custody and timesharing for the child or children at issue. If there is no court order in place, then there are no restrictions on relocating in place either. All circuit courts in central Florida have standing orders that prohibit a parent from relocating with the child or children once a petition for dissolution or for paternity has been filed. It’s important to serve the standing order on the other parent along with the summons and petition.
A relocation under Florida law means that one parent moves more than 50 miles away from their current residence, for at least 60 consecutive days. Note that both parents are prohibited from relocating, not just the custodial parent. A relocation is not a temporary move, a vacation, a short-term move for education, or a temporary moved needed to provide the child with medical care. It has to be a permanent move.
Agreements to Relocate
In Florida, the parents may come to an agreement to allow a relocation if they sign a written agreement that spells out the terms of the move and the new timesharing schedule. The agreement must:
- show that both parents consent to the relocation
- include a time-sharing schedule for the non-relocating parent, and
- explain how the parents will handle transportation of the child for visitation periods.
The parents can then file their signed agreement with the court and request that it be ratified without having to attend a formal hearing. An agreed-upon petition to relocate will usually be part of an uncontested divorce agreement.
Filing a Petition to Relocate
If the parents don’t agree to the relocation, the parent wishing to move must file a petition to relocate with the court and serve it on the other parent. The process then follows the path of a typical family law case. The parent filing the petition cannot relocate unless it is first approved by the court. The petition must include the following information:
- the address and phone number of the proposed new address
- the date of the proposed relocation
- the reasons for the relocation, including a copy of the written job offer, if applicable
- the proposed timesharing schedule after relocation, and
- the proposed plan for transportation to follow the timesharing plan and how the costs are shared.
Responding to a Petition for Relocation
After the non-relocating parent is served with this notice, he or she has 20 days to file a response. If the non-relocating parent doesn’t respond, the court can grant the relocation request without a hearing,
When a non-relocating parent is served with the petition to relocate, they have 20 days to file an answer. If no response is filed within that time period or if the responding party does not object to the Petition, then the court will rule without hearing and grant the relocation request immediately. It’s important to retain an attorney to help prepare the response, which should include the reasons why the move shouldn’t be allowed and a statement of how much the non-relocating parent participates in the child’s life.
Penalties for Relocating Without Court Permission
If a parent relocates without getting court approval, a judge may find that parent in contempt of court. The judge can also review any unapproved move when deciding whether to grant or deny the petition. The court may also order the parent to return the child, pay the other parent’s attorney’s fees, modify the timesharing arrangement in favor of the other parent, or impose other sanctions.
Some parents wonder if the court’s authority to regulate their ability to relocate with a child violates some fundamental right. The argument is that having to first get approval to move with a child violates their fundamental right to travel. Unfortunately, Florida courts have consistently held that it does not. The court does not restrict a parent from moving, it prevents a child from moving when the move will harm the best interests of the child and the custodial rights of the non-relocating parent that must be protected. A parent who wants to move with a child can move if they show how the move may benefit the child’s life, but those benefits must be weighed against the harm from damaging or reducing the other parent’s timesharing with the child.
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