Divorce Attorney Scott J. Stadler

    • 23 OCT 14

    Relocation After A Divorce

    Relocation After A DivorceRelocation After A Divorce

    Your divorce has long been over.  Life is moving along, the parenting plan is working fairly well and the children have pretty well adjusted to their new circumstances.  You have primary physical custody of the children, and your ex has generous time-sharing.   Now your company has offered you a promotion in another state, and you are contemplating the effect it will have on your children.

    Before you start packing and looking for a new home elsewhere, know that Florida law has a say in the matter, and you must comply with its requirements.

    You may not be aware that you need the court’s permission to relocate and take the children with you if the relocation is more than 50 miles from the place you were living.  There are serious consequences that can arise if you do not follow the correct procedures.

    First, “relocation” as defined in the statute as a change in the principal place of residence of a parent at the time of the last order establishing or modifying the time-sharing arrangement.  It must be 50 miles or more from that residence, and for at least 60 consecutive days.  This doesn’t include a temporary absence for vacation, education purposes or medical treatment, because even though it may be for more than 60 days, the principal place of residence has not changed.

    If Everyone Agrees

    If the two of you (and any other person entitled to time with the child) agree that the move is a good thing, and adjust your parenting plan and time-sharing arrangement accordingly, then you must put that agreement in writing and submit it to the court.  The court can ratify the agreement without a hearing, but the agreement must contain written consent to the relocation, and a modified time-sharing arrangement for the parent (or others) who are not relocating.  It should , if necessary, also address the transportation arrangements related to the new time-sharing arrangement.

    If There Is No Agreement

    If there is no agreement on the relocation, the parent who wishes to do so must file a Petition to Relocate with the court asking permission.  The statute is very clear about what must be in the petition.

    In summary, the Petition must state:

    • the physical location of the new residence,
    •  the mailing address and telephone number (if known)
    • The specific reasons for the move
    • A proposal for the new parenting plan and time-sharing arrangements, along with transportation plans
    • Specific language telling the other parent how to object to the petition, and the consequences of failing to object.

    If the reason for the move is a written job offer, the relocating parent must attach the written offer to the petition.  If the non-custodial parent fails to respond, then the court will presume the move is in the best interest of the child.  If the other parent responds and objects to the move, then there will be a hearing or trial to decide the matter.

    What the Judges Consider

    Always, the courts consider the best interests of the child in determining whether a custodial parent can relocate with the children.   The language of the statute says, in pertinent part:

    In reaching its decision regarding a proposed temporary or permanent relocation, the court shall evaluate all of the following:

    (a) 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 non-relocating parent, other persons, siblings, half-siblings, and other significant persons in the child’s life.

    (b) 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, taking into consideration any special needs of the child.

    (c) The feasibility of preserving the relationship between the non-relocating parent or other person and the child through substitute arrangements that take into consideration the logistics of contact, access, and time-sharing, as well as the financial circumstances of the parties; whether those factors are sufficient to foster a continuing meaningful relationship between the child and the non-relocating parent or other person; 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.

    (d) The child’s preference, taking into consideration the age and maturity of the child.

    (e) 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.

    (f) The reasons each parent or other person is seeking or opposing the relocation.

    (g) 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.

    (h) 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.

    (i) The career and other opportunities available to the objecting parent or other person if the relocation occurs.

    (j) A history of substance abuse or domestic violence as defined in s. 741.28 or which meets the criteria of s. 39.806(1)(d) by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.

    (k) Any other factor affecting the best interest of the child or as set forth in s. 61.13.

    The party petitioning the court to relocate has the burden of proof that the move is in the best interest of the child, and that may be difficult to meet.  It is imperative you have an attorney well versed in this area of law to assist you.

    Consequences of Failing to Comply With the Law

    The consequences of not complying with the requirements of the Florida statute can be dire.  You can be subject to contempt of court and other proceedings to compel the return of the child.  It can affect the decision of the court regarding the relocation; in other words, the request can be denied.  If the requirements are not meant, if the child has been moved, it may mean the court orders temporary or permanent return of the child.  You may be responsible for expenses and attorneys’ fees the other parent incurred in seeking the return of the child or in traveling to see the child.

    The Florida statute that governs this particular issue is complex, and you should tread carefully.  The consequences are severe, and should not be taken lightly.  You don’t want to find yourself all of a sudden the non-custodial parent or subject to contempt charges or paying lots of expenses and attorneys’ fees just because you did not follow the required procedure.

    It is best to obtain experienced legal advice in this matter, as you do not want any of those nasty consequences just because you did not know the rules regarding relocation.  A dedicated family law attorney will help you navigate this complex matter.