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It's The Law: Court Cannot Approve Custodial Parent Relocation In Advance

Question: I am going through a divorce. We have tentatively agreed that my spouse will have custody, but now she is talking about moving to Atlanta in a few years. If I do not agree, she says that she will not settle our divorce case and will ask the Judge to give her custody and authorize her to move to Atlanta whenever she wants. Will the Judge approve her request?

Answer: For years, the pendulum swung back and forth with respect to parental relocation in divorce cases. In 1976, the New Jersey Court adopted standards under which a custodial parent would generally be allowed to move as long as the parent’s life would be better, because it was presumed that would be better for the children. Florida followed. The pendulum swung back and in 2006 as Legislature established procedures for relocation cases by adopting Section 61.13001 of Florida Statutes title “Parental Relocation With A Child.”

The statute requires a parent wishing to relocate to request permission from the court. If objection is filed, the court must determine if relocation is in the best interest of the child, which is no longer equated to best interest of the parent. The parent wishing to relocate must introduce evidence of the child’s best interest, after which the objecting parent or other person introduces rebuttal evidence. The parent wishing to relocate must prove the move is in the child’s best interest by great weight of the evidence.

In determining a child’s best interest, the statute mandates that a judge consider a list of factors and concludes by mandating consideration of “any other factor affecting best interest of the child.”

Prior to 2006, Florida’s appellate courts had ruled decision as to relocation had to be decided bared on immediate future and with finality, not to make a decision authorizing relocation at some future time. Relocation at a future time would be considered in the future under the circumstances existing at that time.

In 2008, Florida’s Second District Court of Appeals broke from the crowd. It upheld a trial court decision granting a wife’s relocation request to the area where she grew up and had family but, that relocation be delayed until the child was three (3) years old. The court opined that bonding between infancy and approximately three (3) years of age require more frequent contact with both parents and relocation during that time would not be in the child’s best interest as it would harm bonding with the father.

The Second District was reversed by the Florida Supreme Court. The Court concluded that a best interest determination has to be made at the time of hearing based upon the circumstances and evidence at that time. Because a trial court is not equipped with a “crystal ball,” a perspective based analysis is prohibited. The Court note that any one of statutorily mandated factors to be considered by a judge could change quickly and over time, so that future relocation could only be analyzed at the time for relocation.

Since the trial court ordered a delay in relocation because immediate relocation was not in the best interest of the child, the Supreme Court ruled even though the court did not utilize a “present-based” test, it was clear the court would have denied relocation had it done so. The Second District was reversed and the parties left to argue the issue of relocation at a future date.

The divorce arena is perhaps the most emotionally charged area of litigation. Representation by an experienced counsel is essential to navigate both law and sentiment. If you are not represented by an attorney at the present time, you should seek experienced counsel immediately.

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