Quick info: Can I relocate with my child after a divorce?
You must get permission if you relocate more than 50 miles from your original location. Getting court permission is a tricky issue. Especially if both parents regularly participate in the life of the child. The relocation must be in the interest of the child – not necessarily in the sole interest of the parent that wants to move. Adherence to the Florida statutory requirements is absolutely mandatory. It is normally an uphill battle for the parent seeking court permission to relocate with the child.
The Challenge of Relocation After Divorce
Imagine getting the job offer of a lifetime in an incredible city with unbelievable benefits. What if you meet the man or woman of your dreams but he/she is employed overseas? Or your wife’s company wants to promote her but she (and you) would need to move to the west coast. Now imagine telling your ex-spouse and attempting to discuss this opportunity for your child to have the lifestyle you always wished for him. But your ex doesn’t participate in your enthusiasm. Rather your ex is adamant that you not take little Johnny across the country or overseas.
Your Final Judgment
Slowly you start remembering that pesky little paragraph in your final judgment related to relocation: Relocation of Child. Any relocation must be in accordance with Section 61.13001 of the Florida Statute.
Section 61.13001 of the Florida Statutes defines relocation as “a change in the location of the principal residence of a parent or other person from his or her principal place of residence at the time of the last order establishing or modifying time-sharing, or at the time of filing the pending action to establish or modify time-sharing. The change of location must be at least 50 miles from that residence and for at least 60 consecutive days not including a temporary absence from the principal residence for purposes of vacation, education, or the provision of health care for the child.”
In order to relocate, a parent shall comply with the provisions of Section 61.13001 by either (a) obtaining a written agreement in accordance with 61.13001(2) of the Florida Statutes from the other parent, and any other person entitled to time-sharing, or (b) serving a Petition to Relocate signed under oath or affirmation under penalty of perjury in accordance with Section 61.13001(3) of the Florida Statutes, giving the other parent, and any other person entitled to time-sharing, 20 days to object. IF A PARENT ATTEMPTS TO RELOCATE WITH A CHILD AND FAILS TO COMPLY WITH SECTION 61.13001(3) OF THE FLORIDA STATUTES REGARDING THE PETITION TO RELOCATE, SUCH PARENT MAY BE SUBJECT TO CONTEMPT AND OTHER PROCEEDINGS TO COMPEL THE RETURN OF THE CHILD, AND SUCH NON-COMPLIANCE MAY BE TAKEN INTO ACCOUNT BY THE COURT IN A SUBSEQUENT DETERMINATION OR MODIFICATION OF THE PARENTING PLAN, ACCESS, OR THE TIME-SHARING SCHEDULE.
If a parent is wanting to object to the relocation he/she shall respond to the Petition for Relocation by filing a responsive answer/objection that is verified and served within 20 days after service of the Petition for Relocation. The response should include the specific factual basis supporting the reasons for seeking a prohibition of the relocation, including a statement of the amount of participation and involvement the objecting party currently has or has had in the life of the child.
Florida Law on Child Relocation
Good news! There is no presumption in favor of or against a request to relocate with a child when a parent, who has some type of time sharing with a child, seeks to move more than 50 miles. Section 61.13001(7), Fla. Stat. This means that you have the opportunity to petition for relocation with the court and the judge will not automatically grant or deny this request. The initial burden will be on you to show the Court that relocation is in the child’s (and not just your) best interest. Once you have met this burden by a preponderance of the evidence then the burden will shift to your ex to prove that the relocation will not be in the child’s best interest. The courts have determined that a desire to relocate by itself, as a matter of law, is not a substantial change in circumstances sufficient to merit modification of custody. Miller v. Miller, 992 So. 2d 346 (Fla. 3d DCA 2008).
So if you file Petition to Relocate and your ex-spouse files a Supplemental Petition to Modify the Final Judgment citing that the “substantial change in circumstances” is your desire to move, the court will not simply grant the request to modify the custody if the relocation request is denied. The court in Segarra v. Segarra, 947 So. 2d 543, 547 (Fla. 3d DCA 2006) held that simply because the court denied the relocation petition and there was no demonstrated substantial change in circumstances, the court could not modify the custody award.
The ultimate concern in a relocation determination is whether the relocation is in the best interest of the child. In Fredman v. Fredman, 960 So. 2d 52, 60-61 (Fla. 2d DCA 2007), the court held that relocation cannot be based solely upon the finding that it would serve the best interest of the custodial parent and not the minor child. If this new job opportunity or perhaps a new relationship (your new spouse gets a job transfer) is a great move for you (the parent) but the long work hours away from home, inclement weather (prohibiting outside play) and no nearby family (to spend time with or care for the child) would not be in Johnny’s best interest then it is quite possible that the court would deny your request to relocate. The court will look at whether the non-relocating parent utilizes their timesharing with the child, whether they are current in the child support, the involvement of that parent in the child’s education, and extra-curricular activities among other factors. If the non-relocating parent is actively involved in the child’s life (coaching baseball, attending parent-teacher meetings, taking the child to the doctor, requesting additional overnights) and perhaps the child is only in elementary school (which necessitates the use of the unaccompanied minor expense for transportation) then extensive round trip flights once a month from the west coast to Florida might not be in the child’s best interest.
Legal Standard for Relocation
In determining whether to permit a requested relocation a court shall evaluate all of the following criteria:
(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 nonrelocating 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 nonrelocating 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 nonrelocating parent or another person; and the likelihood of compliance with the substitute arrangements by the relocating parent or another 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 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 § 61.13, Fla. Stat. Section 61.13001(7), Fla. Stat. (2010).
It is important to note that Florida’s law on relocation does not just apply to the parent who has the majority of time sharing with a child. It applies to any parent who has any type of time sharing with a child who seeks to relocate more than 50 miles for a period of 60 consecutive days or more. You do not have to request relocation for temporary absences from your principal residence that are for purposes of vacation, education, or for the child’s health care (i.e. out of State children’s hospital).
If time is of the essence and you need to relocate very soon, it is possible to have a hearing to obtain permission for temporary relocation as soon as 30 days after filing a Petition for Relocation. The Florida statute on relocation provides that a parent seeking temporary or permanent relocation shall be accorded priority on the court’s calendar. It further provides that if a motion seeking a temporary relocation is filed, absent good cause, the hearing must occur no later than 30 days after the motion for a temporary relocation is filed. With regards to the final hearing on the permanent relocation, the Statute provides that if a notice to set the matter for a nonjury trial is filed, absent good cause, the nonjury trial must occur no later than 90 days after the notice is filed.
Real-world strategic advice that you use in your own cases
Relocation is one of the hardest things to get granted by the Court. The Courts do not like the idea of separating a child from a parent unless absolutely necessary, which is why there is such a high burden of proof- a preponderance of the evidence. In order to give yourself the best chance at relocation it is important, if possible, to do some strategic planning. The sooner you know you want to relocate, the more strategic planning you will be able to accomplish. Here are some recommendations we give my clients who seek to relocate:
- Keep a calendar of the time-sharing between you and the other parent. Note any time the other parent fails to exercise his/her time-sharing and/or is late picking up/dropping off the child and/or dates the other parent withheld the child from you.
- Keep a journal of events and occurrences such as, but not limited to: the other parent’s failure to keep you informed of an important event/doctor appointment, the other parent’s refusal to accommodate regular access to the child (i.e. phone contact), issues the child is having because of or while with the other parent.
- Make sure to exercise all your time with the child and ask for more time when reasonable.
- Make sure to be as active in the child’s life as possible i.e. go to all school events, talk to and know all the child’s teachers/coaches/doctors.
- Get a job offer in the area in which you seek to relocate that provides for a similar or better income than you are currently making.
- Pick an area to live in that is in a better “rated” school than the child is currently in.
- Pick an area to live in that has fewer sexual predators and/or a lower crime rate than the area in which the other parent lives.
- Pick an area to live in that has more recreational activities that your child is interested in then the area in which the other parent lives i.e. horseback riding, white water rafting, hiking trails, parks, a particular sport, etc.
- Get school records and if possible, show that the child does better in school when with you rather than when with the other parent.
- If possible, pick an area to relocate to where the child will have more relatives and/or friends nearby versus how many they have near the other parents’ home. Having a support system where you seek to relocate is important to the Court.
- Make sure you are moving for the right reasons- wanting to move as far away from the other parent because you do not like him/her will not be received well by the Court!
- Be creative with the time-sharing you are willing to offer the other parent i.e. local time-sharing with the child where the child will live with you when you relocate and regular Skype/facetime contact with the child instead of just phone calls with the child.
- Be creative with how you are going to keep the other parent involved in the child’s life and how you are going to facilitate the other parent being able to participate in decisions for the child i.e. offer to include the other parent in teaching/parent meetings either via telephone, skype or facetime; offer to record special events; offer to send pictures of the child’s day to day life regularly; etc.
- Consider offering to pay half, if not all, of the travel expenses to accommodate time sharing with the other parent (especially if the other parent is current on child support, if any). We usually suggest to my clients offering to pay half the other parent’s travel expenses to come to to see the child where you relocate to in the event the child suffers a life-threatening illness/injury.
Our Various Experiences From Past Cases
It is extremely important to make sure your object/respond to a Petition for Relocation if you do not want the relocation to take place. We have been successful in obtaining relocation without further notice to the other parent and without a hearing on the relocation simply by the other parent failing to respond within the requisite 20-day time frame after being served with the Petition for Relocation. FL. Stat. §61.13(3)(a)7 provides that if a responding party fails to timely object to the Petition for Relocation, the relocation will be allowed, unless it is not in the best interest of the child, without further notice and without a hearing. That section further provides that if the other parent and any other person entitled to access to or time-sharing with the child fails to timely file a response objecting to the petition to relocate, it is presumed that the relocation is in the best interest of the child and that the relocation should be allowed, and the court shall, absent good cause, enter an order specifying that the order is entered as a result of the failure to respond to the petition and adopting the access and time-sharing schedule and transportation arrangements contained in the petition. The order may be issued in an expedited manner without the necessity of an evidentiary hearing.
We had a case where a Former Wife was seeking to relocate a child from Florida to California so that her new husband could pursue a better job opportunity taking him from a $250,000.00 a year job to a $500,000.00 a year job. Our client, the Former Husband, had equal time-sharing with the child and was very active in the child’s extra-curricular activities. Our client recognized the importance of fighting the relocation very aggressively and gave us the approval to do voluntary depositions of the Former Wife and her new husband. Through the depositions, we were able to drill the Former Wife and her new husband into their finances and show that the move would not provide the child any better life in California than the child had in Florida. More importantly, we were able to get the Former Wife and her new husband to the state during a deposition that they did not know how the child’s life would be improved. The day after the depositions, the Former Wife dismissed her Petition for Relocation. Not only were we successful in ensuring the child did not relocate with the Former Wife, but by fighting the relocating aggressively we were able to avoid our client having to go through potentially two trials- one on temporary relocation and the other on the permanent relocation, which in return saved our client money.
Author’s note from Attorney Howard Iken: The Florida Statutes requires that any relocation of a child by a parent must be in accordance with Section 61.13001, which defines relocation as a change in the location of the principal residence of a parent or other person. The parent must either obtain a written agreement from the other parent or serve a Petition to Relocate, giving the other parent and any other person entitled to time-sharing 20 days to object. If a parent fails to comply with these provisions, they may be subject to contempt and other legal proceedings. The court will not automatically grant or deny a request to relocate with a child, and the parent seeking to relocate must demonstrate that it is in the child’s best interest. The court will consider various factors, including the involvement of the non-relocating parent in the child’s life and education.