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It's The Law: Parental Relocation Requires Court Approval

Q: I heard Florida has a law requiring a divorced parent with a minor child to get court permission to move. Is that true?

A: Years ago, the custodial parent was free to move wherever he or she desired. No court approval was necessary, unless the divorce decree restricted movement or required the custodial parent to obtain court permission to move. Since there was no statute prohibiting movement, it was not uncommon for a custodial parent to relocate without even giving notice to the other parent. Sometimes these moves ended up in court.

Florida appellate courts split in deciding what standard to apply, both claiming to focus on best interest of the child. One line of cases adopted a liberal approach under which the move would be allowed if the motive for moving was anything other than to defeat visitation, the move would likely improve quality of life for the custodial parent and children and whether substitute visitation could be arranged. Another line of cases adopted a stricter approach, focusing on interference with visitation and involvement of the non-custodial parent. Under this second line of cases, permission to move was often denied. Under the more liberal approach, moves were almost never denied.

The Florida Supreme Court resolved the dispute among courts. In the 1993 case of Mize v Mize, the Court adopted the more liberal approach. After Mize, a custodial parent wanting to move was virtually assured he or she could get court permission. The court's reasoning seem to be that if the parent wanting to move could claim the move would be better for the parent, it would automatically be better for the child. The legislature jumped in after the Supreme Court decision and adopted the same standard by statute.

Over time, judges and commentators increasingly focused on the harm done to children when a custodial parent moves and the non-custodial parent is virtually removed from their lives.

In 2006, the legislature amended divorce law to require a parent wanting to relocate provide advance notice to the other parent and any other person who is entitled to visitation with the child. If the other parent did not object to the move, the court would allow it. If objection was filed, the court was mandated to consider a number of factors to reach a decision in contested relocation cases. Those factors went beyond the Supreme Court's decision in Mize but continued the liberal approach of that case.

The legislature revisited the statute this year by adopting a number of changes that will be effective October 1, 2009. Relocation is now defined as moving at least 50 miles for at least 60 consecutive days. A custodial parent wishing to relocate must now provide notice to the other parent and any other person who has access or timesharing with the child under a parenting plan.

Unless an agreement is reached, the custodial parent must file a petition to relocate with the court and the petition must be under oath or penalty of perjury. The petition must include 1) a description of the intended new location, mailing and address and new telephone number; 2) date of the intended move; 3) detailed statement of specific reasons for relocation; 4) a proposed revised schedule for access and timesharing with the child. The petition must be served on the other parent and on every other person entitled to access to or timesharing with the child. If no objection is filed with the court, it is presumed relocation is in the best interest of the child. If an objection is filed, the court must hold a hearing.

Any objection to proposed relocation must include specific factual bases in opposition to relocation, including a statement of the amount of participation or involvement the objecting party currently has or has had in life of the child.

In determining best interest of the child, the court is mandated to consider ten specific factors, including feasibility of preserving relationship between the non-relocating parent or other person and the child, the child's preference (if sufficiently mature) and reasons offered in support of or opposition to relocation. The statute further mandates consideration of "any other factor affecting the best interest of the child..."

If a custodial parent moves without complying with the statute, the court can order the child returned and consider violation of the statute as a factor in changing the parenting plan, access to the child and ultimate decision as to relocation. The court can also order a parent relocating without court permission to pay the attorney fees and costs of the other parent.

The statute is an effort to insure best interest of a child is paramount in relocation decisions. It is far from perfect, but it clearly means the relocation decision will now be given closer scrutiny whenever parents disagree.

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