Honickman Law

 

Relocation

Divorce brings about a restructuring of families in which parents have to continue to cooperate and communicate long after the dissolution of the marriage. One of the greatest challenges involves the relocation of one parent after the divorce. One of the divorced parents usually goes from seeing their children on a daily basis to seeing their children on alternate weekends, holidays, and school breaks. Relocation often requires that the time spent with both parents is even more diminished as a move can often mean seeing your children four times per year or less. This article will attempt to provide a thumbnail sketch of what is required to relocate in Florida in a manner which will hopefully make sense to the family law practitioner, the non-family practitioner, and the layperson.

Florida Statute § 61.13001 requires advance notice. Prior to the statute, a non-relocating parent usually was told with short notice that the relocating parent was moving and needed to obtain an emergency hearing which usually did not take place until after the relocating parent had already moved. Now, if the relocating parent is permanently moving more than 50 miles from the non-relocating parent's home, the Petition to Relocate must be filed first. This notice, among other things, must state the new address and phone number, the date of the move, the reason for the move, and a plan for the new time sharing schedule. This notice provision applies to parents who are subject to an existing court order or who have a pending dissolution action. It does not have to be a divorce but can apply to any time sharing order involving children.

Many parents ask the question, What will happen to me if I move before filing my Petition? If notice is not given, the Court could can hold the relocating parent in contempt, consider additional time sharing to the non relocating parent as "make up time," deny the move, or Order the child be returned in an Emergency Pick Up Order. In short, a parent does not want to move without the other parent's written permission or Court Order. The problem is going to be, however, that unless you are a family law attorney or the procedure is spelled out in an existing Court Order, most people are not going to be aware of these requirements. Further, even if the requirements are known, the notice requirements are highly technical and will be difficult for a layperson to ensure compliance with the statute.

What can the non relocating parent do to protect their rights? If they agree to the relocation and the new terms, the parties can enter into written agreement for relocation. The Court will then sign the Order as an Agreed Order without a hearing in most cases. If relocation is objected to by the non-relocating parent, that parent must file a written objection with the Court and serve a copy on the relocating parent within 20 days of service. Like the petition to relocate, this objection is very technical and must state a basis for an objection and all of the reasons supporting that basis including the extent of that parent's involvement with the children. Again, this will be very difficult for the layperson to ensure their compliance with the statute.

If the parties cannot agree upon the relocation, the Court will have to determine what is appropriate. The new statute builds upon earlier statutes and case law and sets forth a number of factors that the Court must consider. Among other things, the Court will consider the family ties to relocating parent, the age and needs of child, substitute visitation arrangements, the children's preferences, quality of life, reasons for move or objection, employment opportunities for relocating parent, good faith, employment opportunities for objecting parent, and any history of substance abuse or domestic violence. There is no presumption for or against the relocation.

When asked about relocation, the question we all should ask is whether the relocation is in the best interests of the children. There are always good reasons for and against relocation and such decisions must be very difficult for the Court. The reality is that the children probably need both parents to fully develop into happy and healthy adults. Parents should be urged to communicate and make these important decisions themselves and not ask a complete stranger to make these decisions for them. It never is easy for a parent to balance future relationships, careers, or opportunities with the need for the children to have meaningful contact with the other parent, but we must try.

In October of 2008, the parenting laws in Florida improved for families. Prior to the new law, courts used terms such as "primary residential parent" and "visitation" in parenting orders. While "primary residence" was an improvement on "custody", changes were necessary to promote equality and harmony between parents. The new law simply provides for "timesharing". Parties still make decisions together under the concept of "shared parental responsibility", but now courts designate what time is spent with the children by each parent without designating either parent as having "primary residence".

Timesharing is set forth in a "parenting plan". Parenting plans are required to be more specific than previous court orders. This will hopefully avoid the problem of parties returning to court for commonly disagreed upon issues which now are already included in the plan.

Even though neither parent has "primary residence", child support may still be paid by one parent. The parent with the "most overnights" typically receives support and the actual amount is calculated based upon the percentage of time spent by each parent, the parties' incomes, and other child-related costs. See section on Child Support for more information.

While the new law provides tools to be better parents in separate homes, it never can be a substitute for flexibility and compromise.

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