Can I Relocate With My Child? Part V

January 6, 2012 by

Part I of “Can I Relocate With My Child?” detailed Florida Statute §61.13001 a statute deals with “Parental relocation with a child.” In Part I, we detailed both relocation by agreement and the beginning requirements of relocation by petition. Part I can be found here. In Part II, we detailed, more specifically, relocation by petition and what happens when a parent relocates without receiving either relocation by agreement or relocation by petition. Part II can be found here. In Part III, we detailed, another important consideration when one is seeking to relocate with their minor child or someone is looking to prevent such relocation and that is temporary relocation. Part III can be found here. In Part IV, we detailed the considerations of the court when considering a petition for relocation. Part IV can be found here.

In this fifth and final post of the “Can I Relocate With My Child?” series, we cover which party has the burden of proof when seeking to relocate with their respective minor child and what can be included in an order granting relocation.

According to the statute involved here, the party that has the initial burden of proof, better put, the party that has to show why something should happen rather than not happen, is the parent or other person wishing to relocate and that the burden of proof is by a preponderance of the evidence that relocation is in the best interest of the child. Now, we could get into a involved discussion about the “levels” or “types” of burdens of proof that exist but, suffice it to say, a burden showing type of a preponderance of the evidence is what most attorneys and others with experience in the legal field would say that the party with the burden has to persuade the court that there is a greater than 50% chance that the proposition is true. Therefore, the party seeking to relocate has to prove, by greater than 50% probability, that relocation is in the best interest of the child. The statute then states that if the party petitioning to relocate meets that burden of proof, or persuasion, then the burden of proof is “shifted” to the nonrelocating parent or other person to show that by a preponderance of the evidence that relocation is not in the best interest of the child. Unfortunately, the statute doesn’t explain what happens if both parties meet their respective burdens but it is safe to say that if this happens that it would come down to a judgment call by the judge involved in the hearing to determine who made a more compelling argument and then ultimately rule on the party who made the more legally-sound argument.

Then, if an order is entered granting relocation, the statute goes on to state that, “(a) The court may, in its discretion, order contact with the nonrelocating parent or other person, including access, time-sharing, telephone, Internet, webcam, or other arrangements sufficient to ensure that the child has frequent, continuing, and meaningful contact with the nonrelocating parent or other person, if contact is financially affordable and in the best interest of the child.” Therefore, even for non-relocating parents or other parties who may see the minor child relocate to a great distance can still have, if the court finds it to be in the best interest of the child and financially affordable, meaningful visitation with the minor child despite the problems of distance. Then to follow-up that statement the statute then goes on to deal with costs that might arise from such a order when it states, “(b) If applicable, the court shall specify how the transportation costs are to be allocated between the parents and other persons entitled to contact, access, and time-sharing and may adjust the child support award, as appropriate, considering the costs of transportation and the respective net incomes of the parents in accordance with the state child support guidelines schedule.” From this it is clear that if a child is relocated the court will take into consideration the costs of continued, meaningful contact and if the non-relocating parent has to pay child support that amount may be reduced if possible.

In conclusion, to wrap up the “Can I Relocate With My Child?” series, it should be clear that when one parent or other person with time-sharing wants to relocate with their minor child there are numerous considerations to be made and if the parties do not otherwise agree to the relocation by the other with the minor child that litigation is the only other legal way to go about relocation with a minor child. As always, keep in mind that hiring a competent Orlando family law attorney will allow much of this statutory law to be put toward you and your children’s best interest when one party considers relocation or you are the party attempting to stop relocation.

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