Relocation

Relocation can be a difficult subject to consider when going through a separation or divorce. Under Florida Statute §61.13001, there are many necessities and stipulations required for parental relocation with a child. The first section under this statute goes over the definitions to help better explain the conditions of the act. The most important definition provided is relocation. According to Florida Statute §61.13001: “(e) “Relocation” means a change in the location of the principal 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” (Fla. Stat. §61.13001). Relocation can be a fairly common topic when discussing divorce.  However, in all circumstances, the best interest of the child is always taken into consideration before deciding or coming to a ruling on parental relocation involving that child or children.

Two Kinds of Relocation Agreements

There are two main kinds of relocation agreements discussed under the Florida statute. One is relocation by agreement, which under Florida Statute §61.13001 states: “(a) If the parents and every other person entitled to access to or time-sharing with the child agree to the relocation of the child, they may satisfy the requirements of this section by signing a written agreement that:

1. Reflects consent to the relocation;
2. Defines an access or time-sharing schedule for the nonrelocating parent and any other persons who are entitled to access or time-sharing; and
3. Describes, if necessary, any transportation arrangements related to access or time-sharing.

(b) If there is an existing cause of action, judgment, or decree of record pertaining to the child’s residence or a time-sharing schedule, the parties shall seek ratification of the agreement by court order without the necessity of an evidentiary hearing unless a hearing is requested, in writing, by one or more of the parties to the agreement within 10 days after the date the agreement is filed with the court. If a hearing is not timely requested, it shall be presumed that the relocation is in the best interest of the child and the court may ratify the agreement without an evidentiary hearing.” (Fla. Stat. §61.13001). This kind of agreement can help to prevent hostility and tensions between the parties in comparison to a petition to relocate. In the cases where a petition of relocation is enacted, one party typically does not want their child relocated with the other party and has to reply with an objection.

What Is the PETITION TO RELOCATE?

According to Florida Statute §61.13001: “PETITION TO RELOCATE. —Unless an agreement has been entered as described in subsection (2), a parent or other person seeking relocation must file a petition to relocate and serve it upon the other parent, and every other person entitled to access to or time-sharing with the child. The pleadings must be in accordance with this section:

(a) The petition to relocate must be 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 physical 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.
7. Substantially the following statement, in all capital letters and in the same size type, or larger, as the type in the remainder of the petition:

A RESPONSE TO THE 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 FAIL 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 A HEARING.

(b) The petition to relocate must be served on the other parent and on every other person entitled to access to and time-sharing with the child. If there is a pending court action regarding the child, service of process may be according to court rule. Otherwise, service of process shall be according to chapters 48 and 49 or via certified mail, restricted delivery, return receipt requested.

(c) A parent or other person seeking to relocate has a continuing duty to provide current and updated information required by this section when that information becomes known.

(d) If the other parent and any other person entitled to access to or time-sharing with the child fails to timely file a response objecting to the petition to relocate, it is presumed that the relocation is in the best interest of the child and that the relocation should be allowed, and the court shall, absent good cause, enter an order specifying that the order is entered as a result of the failure to respond to the petition and adopting the access and time-sharing schedule and transportation arrangements contained in the petition. The order may be issued in an expedited manner without the necessity of an evidentiary hearing. If a response is timely filed, the parent or other person may not relocate. They must proceed to a temporary hearing or trial and obtain court permission to relocate.

Compliance With the Relocation Requirements

(e) Relocating the child without complying with the requirements of this subsection subjects the party in violation to contempt and other proceedings to compel the return of the child and may be taken into account by the court in any initial or post judgment action seeking a determination or modification of the parenting plan or the access or time-sharing schedule as:

1. A factor in making a determination regarding the relocation of a child.
2. A factor in determining whether the parenting plan or the access or time-sharing schedule should be modified.
3. A basis for ordering the temporary or permanent return of the child.
4. Sufficient cause to order the parent or other person seeking to relocate the child to pay reasonable expenses and attorney’s fees incurred by the party objecting to the relocation.
5. Sufficient cause for the award of reasonable attorney’s fees and costs, including interim travel expenses incident to access or time-sharing or securing the return of the child.” (Fla. Stat. §61.13001). There are many more factors needed under a petition to relocate in comparison to a relocation by agreement. There is an objection response required in this type of case which can create conflicting ideas between the parties of what is best for their children or their child. However, in both kinds of cases whether relocation is agreed upon or not, the child’s best interest is always the priority in the court, and what is taken into most consideration when adjudicating a case involving relocation, whether or not one of the party’s see’s the decision as the best thing for their child.

Relocation Case Studies

Ness v. Martinez

This statute is evident in the cases of Ness v. Martinez and Castleman v. Bicaldo. In Ness v. Martinez, No. 1D17-2742, 2018 WL 2945625, at *1 (Fla. Dist. Ct. App. June 13, 2018) the former wife, appealed due to the fact that she viewed the trial court incorrectly denied her petition for relocation. She viewed that relocation was in the best interest of the child. She thought she provided the evidence to prove it. In this case, it was seen that relocation would take the child away from their extended family. The educational value and opportunity were nothing substantial. The trial court did take into consideration the evidence she provided pertaining to the financial benefits and improved time-sharing plan. However, the court did not see that those benefits really outweighed the other implications of relocation on the child.

Castleman v Bicaldo 

The role of immigration and relocation is discussed in the case of Castleman v. Bicaldo, No. 4D17-827, 2018 WL 2716715, at *1 (Fla. Dist. Ct. App. June 6, 2018). The former wife immigrated from the Philippines to marry her former husband. When the husband filed for dissolution, the final decision made by the trial court also included a ruling in the event that the wife may get deported. However, the trial court erred because Florida statute §61.13001 only is applicable to a voluntary relocation which is not forced by a legal or governmental change in marriage. Both these cases help better explain how relocation is enforced. They show how it impacts or influences child custody cases in Florida.

What Is in the Child’s Best Interest?

Like any kind of law, each case has specific factors that determine final rulings and judgments. Parental relocation is a pretty common topic of discussion in family law. It can be conflicting if there are multiple perspectives on what the child’s best interest is. If relocation is or is not in the child’s best interest, then it plays a very large role in the determination of whether or not the petition for relocation will or will not get approved. There are so many conditions and requirements included in relocation. However, all of the demands and provisions covered in these cases are set in place to ensure the circumstances will be more beneficial to the child or children involved.

References:

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0061/Sections/0061.13001.html

Ness v. Martinez, No. 1D17-2742, 2018 WL 2945625, at *1 (Fla. Dist. Ct. App. June 13, 2018)

Castleman v. Bicaldo, No. 4D17-827, 2018 WL 2716715, at *1 (Fla. Dist. Ct. App. June 6, 2018)