In any divorce, it is common for one or both parties to move to a different residence. But what happens when the party has children and one wants to move far away? Now the scene gets more complicated. While the parties of course have the freedom to go wherever they want, moving away with the children and thereby potentially depriving the other parent of precious time is another story entirely.
To explain the current state of law on the issue in Florida, on this issue, we have to start with where we stand on custody in general. Years ago, the court presumed that young children would live primarily with the mother. For years, the parenting plan that was automatically stapled to the back of the Final Judgment of Dissolution of Marriage was some version of dad getting every other weekend and dinner one weeknight.
A major shift took place in Florida in 2008, when the Florida legislature removed all language from the statutes that made one parent seem more important than the other. The term “custody” - gone. “Primary residential parent”- to the trash. “Visitation”-poof-no longer exists. These terms were replaced with much more inclusive terms such as “timesharing” and “parenting plans.” The result is that now almost a presumption of fifty-fifty timesharing. The thinking behind this shift was that both parents are equally as important in the children’s lives.
So what if one parent wants to “relocate” (the term for a parent who wants to move more than 50 miles away) and take the children? Well, because of the current climate in the courtroom where each parent is equally as important, it is now more difficult than ever. While it is certainly not impossible - courts grant relocation every day – but courts also deny relocation requests regularly.
So how do the courts make their decisions? Florida Statute 61.13001 is the starting point. It provides a list of factors which the court is to consider in light of the facts of each case. These factors include a determination of whether the move will enhance the quality of life for both the relocating parent and child; whether there can be an adequate substitute parenting plan, whether the parties can afford the transportation, and whether the move is sought in good faith, among other factors.
So what does all this cost? The answer is that litigating relocation cases is an investment. While mediation is mandated for all family law cases, relocation issues rarely settle because there is really no gray area upon which the parties can compromise. Once the parties impasse at mediation, then the work begins; each party is tasked with job to gather the information needed to prove that each factor should weigh in his or her favor. Proof means hard and actual evidence that can be presented at trial.
How is this evidence gathered? The parties may agree, or one party may decide to use the court to appoint a specifically trained psychologist to perform a “parenting evaluation” for the specific purpose of making a recommendation as to where the best place will be for the child to live and then what the parenting plan should be. The parenting evaluator will then interview the parties, the children, the family members, significant others, teachers, friends and anyone else involved in the children’s lives. The parties will also be able to share in any information they think is critical with the evaluator, such as proof of employment, domestic violence issues, proof of who the primary parent was during the marriage and anything else. Often the evaluator will administer psychological tests on the parents to determine information such as the party’s capacity as a parent or whether there are any mental health issues.
Without the benefit of an evaluator, the attorney must do all of this information gathering. It is very meticulous and intensive process to gather the information, wade through it, and then determine what gets presented to the court.
While the process can be expensive, stressful and intense, many choose to make the investment because the opportunity to relocate is worth it to them. If you want to relocate with the children, here is some advice:
- Choose a good lawyer who has lots of experience handling family law cases
- Review all of the factors in Florida Statute 61.13001 to see where you might stand
- Start gathering your supporting documentation for each factor.
- Work with your lawyer to put together a strong case to present to the court.