Florida Family Lawyer Blog

Under Florida law, the court determines all matters relating to the custody of children based on what is in the best interests of each child. The public policy of Florida stresses that minor children should have frequent and continuing contact with their parents after a divorce. Therefore, the court will order shared parental responsibility for each child, after a divorce, unless they find that allowing this would be detrimental to the child. Because the parents are equally responsible for sharing in the upbringing of each child, if one parent must relocate and wants to take the child with them, this creates the problem of removing the child from the jurisdiction.

Under Florida statute 63.13001, relocation is defined as moving at least 50 miles from your current place of principle residence. Thus, a move from Miami to West Palm Beach would qualify as relocation. If you relocate more than 50 miles and take your child with you, then you are removing the child from the jurisdiction. Both parents may voluntarily enter into an agreement by themselves which allows for relocation of one parent from the jurisdiction and taking the child with them. If this is not feasible, then the court is allowed to grant permission for removal of a child from the current jurisdiction. Under the Florida Statutes, in making a determination as to whether the primary residential parent may relocate with a child, the court must consider the following factors:

• Whether the move would be likely to improve the general quality of life for both the residential parent and the child.
• The reasons each parent is seeking or opposing relocation.
• The extent to which visitation rights have been allowed and exercised.
• Whether the primary residential parent, once out of the jurisdiction, will be likely to comply with any substitute visitation arrangements.
• Whether the substitute visitation will be adequate to foster a feasible and continuing meaningful relationship between the child and the secondary residential parent.
• Whether the non-custodial parent has been highly involved in the child’s life.
• Whether the cost of transportation is financially affordable by one or both parents.
• Whether the move is in the best interests of the child.

Under Florida law, removing a child from a jurisdiction is very fact sensitive and dealt with by the courts on a case-by-case basis. If you need to relocate to another jurisdiction and want to take your child with you or you want to fight for your child to remain in their current jurisdiction, the experienced family law attorneys at Koch and Trushin can help you with this process. Please feel free to contact us for an initial first consultation.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Relocation of Child After Divorce

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On October 1, 2009, the Florida legislature enacted Florida Statute 61.13001, which outlines the steps parents must take before they relocate their child or to prevent their child’s relocation. If you are a parent in Fort Lauderdale, Miami or Palm Beach and you are planning to move more than 50 miles from your current home, you must obtain either: (1) written permission from the other parent or (2) a court order permitting the relocation. Likewise, if you want to prevent your child’s other parent from moving with your child out of this area, you must act carefully to protect your rights.

If parents disagree over the potential relocation of a child, the parent seeking relocation must serve a Petition to Relocate on the other parent. The petition must be signed under oath and must include specific allegations required by Florida Law. Failure to serve a petition meeting these requirements and/or relocating your child without a written agreement or a court order will be considered contempt of court and may result in: the court forbidding the relocation, a change in the standing timesharing agreement (previously referred to as custody agreement), a court order demanding the return of the child, or the relocating parent being forced to pay the other parent’s attorneys fees and all travel expenses related to visitation or the return of the child.

Once a petition to relocate is served, the other parent has 20 days to file an objection. If the other parent fails to file an objection, the court will presume the move is in the best interests of the child and enter an order allowing the relocation and adopting the timesharing and transportation arrangements contained in the petition. If the other parent objects to the relocation, the relocating parent must prove that the move is in the best interests of the child. The court must consider many factors in determining whether to allow the relocation, including:

• The nature, quality and duration of the child's relationship with both parents and with siblings, half-siblings, and other significant persons in the child's life.
• The likely impact the relocation will have on the child's physical, educational, and emotional development.
• Whether the substitute time-sharing arrangements are sufficient to foster a continuing meaningful relationship between the child and the non-relocating parent.
• The likelihood of compliance with the substitute arrangements by the relocating parent.
• The child's preference, taking into consideration the age and maturity of the child.
• Whether the relocation will enhance the general quality of life for the parent seeking the relocation and for the child.
• Each parent’s reasons for seeking or opposing the relocation.
• The current employment and economic circumstances of each parent.
• That the relocation is sought in good faith.
• Whether the objecting parent has fulfilled his or her financial obligations to the parent seeking relocation, including child support, spousal support, and marital property obligations.
• A history of substance abuse or domestic by either parent.
• Any other factor affecting the best interest of the child.

As demonstrated above, once you have a child with another individual you cannot simply decide to unilaterally move out of state, there is a specific procedure you must follow. If you are a parent who wishes to relocate your child or to prevent the relocation of your child, the family law attorneys at Koch & Trushin can help you present your case to the court in the best light possible. Please feel free to contact us for a free initial consultation.

Posted by Bradley H. Trushin | Permalink | Email This Post

Posted In: Relocation of Child After Divorce

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It’s been six months since you have seen your husband. You want to file for divorce, but you have no idea where he is. What options are available to you when Florida law requires that you serve your husband with divorce papers, even if you can’t find him? The answer is simple: constructive service of process. In Florida, after making diligent and reasonable inquiry into the whereabouts of your husband and you still cannot locate him to serve him in person, you may “constructively” put your husband on notice of the pending suit by following the steps below, so your dissolution may proceed.

If you find yourself in the situation hypothesized above, the first step to take is to make a reasonable search entailing some of the search procedures outlined in this Affidavit of Diligent Search and Inquiry. Next, file an Affidavit of Diligent Search and Inquiry along with your Notice of Action for Dissolution of Marriage. The affidavit, which includes a checklist of places you can look to gather information to locate your husband, ensures that you have made a serious effort to find your husband’s location. Both the affidavit and Notice of Action for Dissolution should be filed in the circuit court in the county where your petition for dissolution of marriage is filed. So, if you petitioned for divorce in Fort Lauderdale, Florida, you would file your affidavit and notice with the circuit court in Broward County. If the court grants you publication of process, the next step would be to publish notice of the dissolution proceeding once a week, for four (4) consecutive weeks, in a newspaper that is published within the county – here it would be a Broward County newspaper such as the Fort Lauderdale Sun Sentinel. After completing this process, the dissolution may proceed, with or without your husband. However, once the divorce is resolved, other problems may rise when you cannot find the father, such as notifying him of your intent to relocating your child more than 50 miles away from your current address.

Assuming your husband never showed up to the divorce proceeding and the court finds it is in the best interest of the child to do so, you would most likely be awarded full residential custody of your child. If that award granted no visitation rights to the father, your husband, then you would also most likely be able to move more than 50 miles away without telling him because he was not granted visitation rights to begin with.

However, in a different scenario where the father was involved in the divorce and was granted visitation rights with the child, and you decide to move from Fort Lauderdale, Florida to Tampa, Florida, which is more than 50 miles away, you would have to serve your husband with notice of your intent to relocate.

Recently, a visitor to our blog posted a question as to what process should she follow if after the father was initially granted visitation but since that time has taken off and the wife is unable to locate the father. In Florida, there is no specific statute determining what proper notice consists of when dealing with service of a notice to relocate upon the father who can’t be found, but it may be in your best interest to rely on what is the accepted practice for constructive service (service by publication) in family law, like in a petition for dissolution of marriage (see the example mentioned in the previous paragraph). This problem may be avoided if the visitation agreement contains a provision including an address for both the mother and the father, which serves as the official address to provide notice to the other party. By stipulating in advance what is the proper address to provide notice, this problem is solved before it even starts.

If you wish to relocate more than 50 miles away from your current address and your husband does have visitation rights, but you have not seen or been able to locate him after diligent search and inquiry, your best bet would be to consult an attorney to consider your options for possible constructive service.

Posted by Bradley H. Trushin | Permalink | Email This Post

Posted In: Child Custody , Divorce , Relocation of Child After Divorce

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In a previous post we discussed formulating an agreement between you and your ex-spouse when you want to move your minor child more than 50 miles away after residency has been determined in dissolution of marriage proceeding (your divorce). In that example, we said that the primary residential parent is living in Fort Lauderdale, and she wanted to move with her child to northern Florida. Let’s use that same example. However, instead of formulating an agreement, mom realizes she will never be able to come to a complete, written agreement with her ex-spouse concerning the relocation of her child. Rest assured, there is another avenue at her disposal affording her the opportunity to legally relocate to northern Florida with her child.

In Florida, unless there is a written agreement between the parents concerning the relocation of their minor child, a mother who is entitled to primary residency of this child is permitted to take other steps to ensure her notification to the father is proper. Mom’s first step must be to notify the other parent of the proposed relocation of the child’s principal residence by preparing a Notice of Intent to Relocate. Here is a sample one.. Such notices must conform to the Florida Statutes, therefore, please look to the our sample to ensure proper compliance with Florida laws.

To encourage resolution without court involvement, Florida provides that the mother should first serve the notice upon the former husband. The mother should only file with the court if her ex-husband objects. When first serving it upon the father, her official notice should include a Certificate of Filing Notice of Intent to Relocate, which certifies the date it was served. And finally, absent a pending court action, the mom can serve this notice via certified mail, restricted delivery, with a return receipt requested.

After your notice has been served, the non-residential parent has 30 days to object. If the non-residential parent fails to object within this time-frame, the relocation is permissible. However, if the non-residential parent, the father in this case, does object within the 30 days, he must state the specific reasons to deny the relocation, which must include the amount of involvement he has in the child’s life. It is at this point, the court must get involved. If the father files an objection, the mother now must rely on the court, and she has the burden to initiate court proceedings to obtain the court’s permission to relocate the child.

If you are thinking about relocating your child more than fifty miles away after a dissolution, please contact an attorney to consider all your options.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Child Custody , Divorce , Relocation of Child After Divorce

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When you are divorced in Florida and you are the primary residential parent to a child and your ex-spouse has visitation rights, relocating your child to a new principal residence more than 50 miles away from your previous residence has many implications for you and every other person entitled to visitation with your child. Failure to comply may lead to adverse results. Take, for example, this scenario:

You have been divorced for 3 years, you have a minor child, and you are the primary residential parent by court designation. Since the divorce, you have lived in the same house in Fort Lauderdale, Florida, but now you feel it’s time to move. Whether moving for a new job, a new location, or a better investment opportunity, you have decided to pick up and move you and your child to northern Florida. How do you go about relocating with your child without running afoul of the law? One of the most efficient ways of handling relocation is crafting a relocation agreement with the secondary residential parent.

Create a relocation agreement. The primary residential parent, and the secondary residential parent may enter into a written agreement before moving more than 50 miles away. However, the agreement must: (1) consent to the relocation; (2) define visitation rights for the non-relocating parent; and (3) describe any transportation arrangements that may be necessary for proper visitation. If you have an existing court order that relates to the child’s primary residence or visitation, you must seek ratification of the agreement by court order, which will evaluate the best interest of the child. Furthermore, a relocation agreement may address the added cost to the non-relocating secondary residential parent for travel expenses related to visitation with the child.

While there are other avenues to follow when relocating more than 50 miles from Fort Lauderdale, or any other Florida town, a relocation agreement may be the best method for resolving a potentially thorny matter.

For more information about relocation agreements, or if you need assistance drafting one, please contact an attorney.

Posted by Daniel Louis Koch | Permalink | Email This Post

Posted In: Child Custody , Divorce , Relocation of Child After Divorce

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