The Law Firm of Robert D. Stein

In Florida when parents divorce, one parent may want to move to another location.  If a child moves out of state with a parent, it’s likely that the family will need a new parenting plan to address timesharing and transportation costs . Should a parent with primary custody be forced to leave children with the other parent if a job necessitates a move?

Florida law defines a relocation when a parent moves 50 miles or more from their current residence and for at least 60 days.  Temporary changes for the purposes of vacation, education, or providing the child with medical care do not constitute relocation.

Parents may come to an agreement regarding a relocation by signing a written agreement that spells out the terms of the move and new custody arrangements. The agreement must:

1. show that both parents agree to the relocation
2. set forth a time-sharing schedule for the non-relocating parent, and
3. state how the parents will handle transportation of the child for visitation periods.
4. The parents can then file their signed contract with the court and request that it be ratified without the parents having to attend a formal hearing.

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 petition must include the following information:

1. the address and phone number of the place where the parent wishes to relocate
2. the date of the proposed relocation
3. the reasons for the relocation, including a copy of the written job offer, if applicable
4. the proposed visitation schedule after relocation, and
5. the proposed plan for transportation.

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, so it’s imperative that the non-relocating parent respond or quickly retain an attorney to help prepare the response. The response 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.

On the other hand, if a parent relocates without getting court approval, a judge may find that parent in contempt of court. The judge will also take an unapproved move into account when deciding whether to order the parent to return the child, pay the other parent’s attorneys’ fees, modify the custody arrangement in favor of the other parent, or impose other sanctions (penalties).

Some parents may wonder whether the court having control over their ability to relocate with a child violates some principle of law; some have appealed attempting to claim that having to get court permission to move with a child violates their fundamental right to travel. Florida courts have ruled consistently that it does not. It’s not the parent that is being restricted from moving, it’s moving with a child whose other parent has custodial rights that must be protected. Certainly, a parent who wants to move with a child will be allowed to show how the move may benefit the child’s life, but those benefits must be weighed against the harm from diminishing the other parent’s relationship with the child.

When deciding whether a planned move is in the child’s best interests, the court will consider several factors, including each of the following:

1. the child’s relationship with both the relocating and non-relocating parent
2. the child’s age and current needs
3. the impact the move will have on the child’s development
4. the ability to maintain the relationship between the child and the non-relocating parent
5. cost and logistics to maintain visitation between the child and non-relocating parent
6. the child’s preference
7. whether the relocation will improve the lives of the parent and child
8. the parents’ reasons for and against the relocation
9. whether the relocation is necessary for financial reasons
10. whether the relocating parent is attempting to move for good faith reasons
11. whether the non-relocating parent has complied with paying child support, alimony, and division of marital property, if applicable
12. whether either parent has had a history of substance abuse or domestic violence, and
13. any other factor affecting the child’s best interest.

The parent trying to relocate has the burden of proving that the move is in the child’s best interest. The court will schedule either a hearing within 30 days of the motion being filed, or a trial within 90 days of the filed motion.

In one 1996 case, a mother moved her children to another state without prior court approval. The father filed a motion to hold the mother in contempt for moving, and the mother then made a request to relocate. The court in that case found that the mother’s reasons for relocating were dubious, 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, so the court denied her request.

If you or your child’s other parent is attempting to relocate with a child, you should call us for a free consultation.