My former spouse is the primary residential parent for our children. The kids tell me they're planning on moving to Oklahoma. Can that be done?
A: Parental relocation has been an area of substantial concern to both the courts and the legislature in Florida. Over time, a split developed in Florida's appellate courts.
The appellate courts agreed that unless there was a residence restriction imposed on the custodial parent in the dissolution judgment, a custodial parent was free to move with the children.
However, there was a split among the appellate courts when the judgment imposed a restriction on movement of divorced parents. Some appellate courts made it difficult to move, as the it would violate terms of the final judgment by interfering with visitation rights.
Those courts found implicit restrictions against movement created by the visitation schedule for the non-custodial parent. Other courts reasoned that authorization to move should be liberally granted where the custodial parent would have improved quality of life as such would invariably improve the child's quality of life and be in the best interest of the child.
In 1993, the Florida Supreme Court settled the dispute by adopting the more liberal approach to authorizing custodial parents relocation in the case Mize v Mize. In the Mize case, the Supreme Court adopted six criteria that had been approved in New Jersey for review of custodial parents efforts to leave Florida.
The six criteria were: Whether the move would likely improve the general quality of life for both primary residential parent and the children; whether the motive for seeking the move is for the express purpose of defeating visitation; whether the custodial parent would likely comply with substitute visitation arrangements; whether substitute visitation would be adequate to foster a continuing meaningful relationship between the child or children and the non-custodial parent; whether the cost of transportation is financially affordable by one or both parents; and whether the move is in the best interest of the child.
Florida Courts almost always approved the move with the reasoning that it would be in the best interest of the child if it were in the best interest of the custodial parent. Recently, the pendulum has occasionally swung the other way when the courts found that a substitute visitation schedule would not foster a continuing meaningful relationship between the children and the non-custodial parent, although those cases remain in the minority.
In the Mize decision, many of the Justices opined that this was really an area for legislative enactment and that the court was not the best arena to resolve these disputes. In 1997, the legislature adopted the Supreme Court's criteria, including additional language that no presumption arose in favor or against a request to relocate if the move would materially effect the current schedule of contact in access with the secondary residential parent.
The legislature made it clear that interference with the visitation schedule set by the divorce judgment would not, of itself, prejudice the decision on relocation in either direction.
Under the new statute, courts continued their course of granting authority to move on the theory that where the custodial parent could reasonably argue improvement in quality of life for that part it would be in the best interest of the children.
Florida courts almost universally ignored the loss of contact with the non-custodial parent, finding that alternate visitation schedules such as longer visits during the summer would adequately foster a meaningful relationship between the non-custodial parent and the children.
It became increasingly clear that geographical distance between non--custodial parent and the child substantially impacts the relationship between them and the well being of the child. As such, some judges have given the request to move more scrutiny and placed greater emphasis on the disruption of visitation with the non-custodial parent would detrimentally affect the well-being of the children.
Where the final WHAT did not contain an explicit restriction on movement, many custodial parents were moving without first seeking court authority. This left the non-custodial parent in a "catch up" position, often attempting to get emergency hearing time to stop or reverse the move. In 2006, Florida legislature again entered in this arena.
The new statute, effective as of Oct. 1, 2006, requires that a custodial parent wishing to relocate provide written notice to the non-custodial parent of intent to relocate, signed under oath under penalty of perjury and including: - Description of the new intended address, if known; - Mailing address of the new location, if known; - Home telephone number, of the new address, if know; - Date of the intended move; - Detailed statement of the specific reasons for the proposed relocation. If one of the reasons is based upon a written job offer, the written offer must be attached to the notice; - A proposed revised schedule of visitation, including transportation arrangements; - Notice that the non-custodial parent must file an objection to the proposed relocation with the court within 30 days after service of the notice of intent to relocate or objections are waived.
The new statute allows courts to make temporary and permanent orders, including a temporary order restraining relocation of a child or ordering return of the child if the statutory notice requirements have not been followed.
The court can also grant a temporary order permitting relocation if the court finds at hearing that it will likely grant the request and that the required notice of intent to relocate was provided in a timely manner.
The new statute also expands specific factors to be considered in determining contested relocation cases. New criteria include: - Age and developmental stage of the child, the needs of the child and the likely impact of relocation on the child's physical, educational and emotional development; - The child's preference, taking into consideration the age and maturity of the child; - Reasons of each parent or other person for seeking or opposing relocation; - Current employment and economic circumstances of each parent and whether or not the proposed relocation is necessary to improve the economic circumstances of the parent or the person seeking relocation; - Whether the objecting parent has fulfilled his or her financial obligations to the custodial parent; - Career and other opportunities available to the objecting parent if the relocation occurs; - Any history of substance abuse or domestic violence.
The new statute attempts to stop surprise change of residence by the primary residential parent with children. It sets forth a specific notice requirement and additional criteria for consideration by the court.
This is a complex area that appears to be in a state of change. You should retain an experienced attorney at your earliest opportunity.
William G. Morris is a lawyer with offices at 247 N. Collier Blvd., Marco Island.The column is not intended to be legal advice for specific circumstances.General questions can be sent by e-mail to firstname.lastname@example.org or by fax to (239) 642-0722. Read other columns at http://www.wgmorris.com.