By Attorney Howard Iken
Unless there is an agreement related to relocation with kids, a parent or other person seeking relocation for their children must file a Petition to Relocate and serve it on the other parent (and every other person entitled to access to or time-sharing with the child).
A Petition to Relocate with kids must contain the following: signed under oath or affirmation under penalty of perjury and include:
- A description of the location of the intended new residence where you want to relocate to, including the state, city, and specific physical address, if known.
- The mailing address of the intended new residence, if not the same as the physical address, if known.
- The home telephone number of the intended new residence, if known.
- The date of the intended move or proposed relocation with the children.
- A detailed statement of the specific reasons for the proposed relocation. If one of the reasons is based upon a job offer that has been reduced to writing, the written job offer must be attached to the petition.
- A proposal for the revised post-relocation schedule for access and time-sharing together with a proposal for the post-relocation transportation arrangements necessary to allow time-sharing with the child. Absent the existence of a current, valid order abating, terminating, or restricting access or time-sharing or other good cause predating the petition, failure to comply with this provision renders the petition to relocate legally insufficient.
- Substantially the following statement, in all capital letters and in the same size type, or larger, as the type in the remainder of the petition:
A RESPONSE TO THE PETITION OBJECTING TO RELOCATION MUST BE MADE IN WRITING, FILED WITH THE COURT, AND SERVED ON THE PARENT OR OTHER PERSON SEEKING TO RELOCATE WITHIN 20 DAYS AFTER SERVICE OF THIS PETITION TO RELOCATE. IF YOU FAIL TO TIMELY OBJECT TO THE RELOCATION, THE RELOCATION WILL BE ALLOWED, UNLESS IT IS NOT IN THE BEST INTERESTS OF THE CHILD, WITHOUT FURTHER NOTICE AND WITHOUT A HEARING.
Once the other parent has been served with the Petition to Relocate they have twenty (20) days after the date of service to respond (either agreeing to the relocation or objecting to same). This time period is critical because a failure to timely object means the residential parent is allowed to relocate without further notice and without a hearing because it is presumed that the relocation is in the best interest of the child. If, however, a response is timely filed, the parent may not relocate and must proceed to a temporary hearing or trial and obtain court permission to relocate.
The response to the relocation must be verified and include the specific factual basis supporting the reasons for seeking a prohibition of the relocation (if an objection), including a statement of the amount of participation or involvement the non-relocating party currently has or has had in the life of the child. Then the court may grant a temporary order restraining the relocation of the child, order the parent to return the child if a relocation has previously taken place, or any other appropriate relief if the court.
The court may grant a temporary order permitting the relocation of the child pending final hearing, if the court finds:
- That the petition to relocate was properly filed and is otherwise in compliance with subsection (3); and
- From an examination of the evidence presented at the preliminary hearing, that there is a likelihood that on final hearing the court will approve the relocation of the child, which findings must be supported by the same factual basis as would be necessary to support approving the relocation in a final judgment.
If the court has issued a temporary order authorizing a party seeking to relocate or move a child before a final judgment is rendered, the court may not give any weight to the temporary relocation as a factor in reaching its final decision. The court may require the relocating parent to guarantee that the court-ordered temporary contact will continue with the non-relocating parent. When a party wants to relocate it is crucial that they are fully prepared for the financial expense associated with this type of litigation and that they understand that there is no guarantee of victory.
Should the non-relocating parent timely file an objection then you need to obtain a temporary relief hearing as soon as possible. The court is required to fast track (or speed up) the date of a temporary hearing related to relocation. This means you should be able to get a court hearing very quickly to address temporary relocation. A temporary hearing on relocation is basically a mini-trial. Even though the court is not supposed to give further weight to the temporary order granting or denying relocation when you go to Trial on the matter, it will give the parties a better idea of what the court will be looking for in the final hearing.
In a recent relocation case, the court granted the temporary relocation for the child to move from Orlando, Florida to another state pending the final hearing. It was about half a year later that we were able to finally go to trial on the relocation request. The court ordered the parties to mediate prior to the final hearing which was an additional expense for the parties. The temporary relief hearing was held within about a month after the petition to relocate was filed but the preparation that went into this particular temporary relief hearing was akin to preparing for a full blown trial.
A petition to relocate can be extremely costly and it is not unusual for the parties to spend fees similar to the original divorce proceeding (despite the shortened length of time in a relocation matter). The more prepares you are to present your case prior to filing the better chance you will have of getting a temporary relocation granted. That will give the requesting party the opportunity to “prove” their points related to the relocation being in the best interest of the child.
For example, if one reason to relocate is to provide the minor child with a better education then a temporary relocation can provide that parent the opportunity to enroll the child in the new school district, meet the child’s new teacher(s), get involved with the child’s new school and engage the child in extra-curricular activities associated with the new environment. If, for example, a child is currently enrolled in Seminole County at a “C” rated middle school but the residential parent is seeking to relocate to Windermere, Florida which has a “A” rated middle school then a successful temporary relocation during the Spring school semester would have a very positive impact at a summer trial on relocation.
Often the court at a temporary relocation hearing will provide the parties with guidelines related to the court’s findings (either granting or denying the temporary relocation). In my recent case the court was specific as to the necessity of providing updated information at the final hearing related to the parent’s employment status, the facilitation of the temporary parenting plan and the involvement of the parents or third parties in the child’s life.
The final hearing (trial) provided the parties an opportunity to argue whether the last half year proved that the temporary relocation was in the child’s best interests or not. It was not enough for the non-relocating parent to argue that he did not like the new timesharing arrangement (and in fact the court favored a different time-sharing plan as proposed by our client). The court reviewed all the factors in Section 61.13001 and listened to the evidence in making its determination to allow the permanent relocation of the minor child.