Can I relocate with my child? Part I

December 4, 2011 by

I’m often asked during consultations with current and/or potential clients about the prospect of one parent relocating to a different state or even across the state of Florida after they’ve either divorced or the parties were never married but have a minor child in common. The answer to this question is answered in most part by Florida Statute §61.13001. This statute deals with “Parental relocation with a child.” This topic will be answered over several parts and this is the first post of the coming series titled "Can I relocate with my child?"

First off, it needs to be determined who or whom exactly has a say in the relocation of a minor child and then, second, what exactly does “relocation” mean? To answer the first question only a “parent” or “other person” has any say when a consideration regarding relocation comes up. A “parent” is defined as, “any person so named by a court order or express written agreement who is subject to court enforcement or a person reflected as a parent on a birth certificate and who is entitled to access to or time-sharing with the child.” Essentially, either parents, parents established through paternity or adopted parents are “parents” for relocation. An “other person” is defined as “an individual who is not a parent, but with whom the child resides pursuant to a court order, or who has the right of access to, time-sharing with, or visitation with the child.” This essentially means that guardians, grandparents, aunts, uncles, etc. can all technically be considered as an “other person.” Then, the question that follows is, “What exactly is ‘relocation’?” The statute defines relocation as, “ a change in the location of the principal residence of a parent or other person from his or her principal place of residence at the time of the last order establishing or modifying time-sharing, or at the time of filing the pending action to establish or modify time-sharing. The change of location must be at least 50 miles from that residence, and for at least 60 consecutive days not including a temporary absence from the principal residence for purposes of vacation, education, or the provision of health care for the child.” (emphasis added) Therefore, a petition for relocation need only be considered when the minor child moves at least 50 miles away from the last time time-sharing was established or modified and must be for at least 60 consecutive days. This essentially excludes any relocation less than 50 miles away and when the minor child goes with a parent to another state or jurisdiction for less than 60 consecutive days.

After establishing who plays a role and the exact definition of “relocation” according to Florida Statute, it is now necessary to consider how relocation may occur. By far the easiest way would be what is called “relocation by agreement.” This is where the parents and every other person entitled to access to or time-sharing with the child agree to relocation of the child. This must be evidenced with a signed written agreement that: (1) reflects consent to the relocation, (2) defines an access or time-sharing schedule for the non-relocating parent and any other persons who are entitled to access to or time-sharing, and (3) describes, if necessary, any transportation arrangements related to access or time-sharing.” If the parties cannot reach an agreement then parties may attempt to relocate by filing a “petition to relocate.” This petition must be served on all parents any every other person with access to or time-sharing with the child and must include the following in a petition signed under oath or affirmation under penalty of perjury and include: (1) a description of the location of the intended new residence, including the state, city, and specific address, if known; (2) the mailing address of the intended new residence, if not the same as the physical address, if known; (3) the home telephone number of the intended new residence, if known; (4) the date of the intended move or proposed relocation; (5) a detailed statement of the specific reasons for the proposed relocation . If one of the reasons is based upon a job offer that has been reduced to writing, the written job offer must be attached to the petition; (6) a proposal for the revised postrelocation schedule for access and time-sharing together with a proposal for the postrelocation transportation arrangements necessary to effectuate time-sharing with the child. Absent the existence of a current, valid order abating, terminating, or restricting access or time-sharing or other good cause predating the petition, failure to comply with this provision renders the petition to relocate legally insufficient; and (7) substantially the following statement, in all capital letters and in the same type size, or larger, as the type in the remainder of the petition: A RESPONSE TO PETITION OBJECTING TO RELOCATION MUST BE MADE IN WRITING, FILED WITH THE COURT, AND SERVED ON THE PARENT OR OTHER PERSON SEEKING TO RELOCATE WITHIN 20 DAYS AFTER SERVICE OF THIS PETITION TO RELOCATE. IF YOU FAILY TO TIMELY OBJECT TO THE RELOCATION, THE RELOCATION WILL BE ALLOWED, UNLESS IT IS NOT IN THE BEST INTERESTS OF THE CHILD, WITHOUT FURTHER NOTICE AND WITHOUT HEARING.

Part II coming later this week…

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