What can you do when your ex wants to move out of state with your child?
After parents divorce, one parent may want to move to another location. But what are the rules for moving when a child is involved? If a child moves out of state with a parent, it’s unlikely that the child will be able to continue the same visitation schedule with both parents, or at least not without a lot of travel and high costs. At the same time, should a parent with primary custody be forced to leave children with the other parent if a job necessitates a move?
In Florida, judges must balance the custodial parent’s right to move for legitimate reasons with the non-relocating parent’s right to have meaningful contact with the children. This article will explain what factors into a court’s decision when a parent wants to relocate.
What Constitutes a Relocation?
Florida law defines a relocation as a parent moving 50 miles or more from the current residence, for at least 60 days. A relocation is not a temporary change for the purposes of vacation, education, or providing the child with medical care.
In Florida, 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:
show that both parents agree to the relocation
set forth a time-sharing schedule for the non-relocating parent, and
state how the parents will handle transportation of the child for visitation periods.
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.
Filing a Petition to Relocate
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:
the address and phone number of the place where the parent wishes to relocate
the date of the proposed relocation
the reasons for the relocation, including a copy of the written job offer, if applicable
the proposed visitation schedule after relocation, and
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.
How Courts Decide Whether to Allow a Child to Relocate with a Parent
When deciding whether a planned move is in the child’s best interests, the court will consider several factors, including each of the following:
the child’s relationship with both the relocating and non-relocating parent
the child’s age and current needs
the impact the move will have on the child’s development
the ability to maintain the relationship between the child and the non-relocating parent
cost and logistics to maintain visitation between the child and non-relocating parent
the child’s preference
whether the relocation will improve the lives of the parent and child
the parents’ reasons for and against the relocation
whether the relocation is necessary for financial reasons
whether the relocating parent is attempting to move for good faith reasons
whether the non-relocating parent has complied with paying child support, alimony, and division of marital property, if applicable
whether either parent has had a history of substance abuse or domestic violence, and
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 speak to an experienced family law attorney.
Article by: Aaron Thomas