In Dunn, the husband took the children and relocated from Florida to live with his parents in Tennessee. This ocurred during the irreconcilable breakdown of the marriage, but before divorce was filed. His wife quickly filed a divorce and requested an emergency pickup order for return of the children, which the trial court granted.

The husband appealed, arguing that F.S. 61.13001, Florida’s relocation statute, doesn’t prohibit relocation before divorce is filed. The Third DCA agreed, noting the law applies only after a time-sharing order has been ordered, or a pending action has been filed.

However, the court held a that the trial court had discretion to order a parenting plan that included return of the children if determined to be in the best interests of the children under F.S. 61.13(2)(a).

The Fourth DCA stayed the pickup order and remanded for the trial court to hold a hearing on whether returning the children serves their best interests.

Michael DeVoe is a divorce attorney in Orlando, Florida practicing contested divorce, uncontested divorce, timesharing, visitation, custody, paternity, child support, injunctions, and other family law cases.

Kathleen and Mark Horn had filed for divorce. As part of their divorce final judgment, the trial court allowed Mark allowed to relocate with their child, if needed, from San Antonio, Texas, to any other location in the continental United States, including to the paternal grandmother’s home in Virginia. The trial court said Mark could do so without approval of his former wife or from the trial court. Kathleen raised this and other issues on appeal.

Ultimately, the District Court of Appeal found that Florida state law doesn’t permit this type of relocation. The court noted that the Florida Supreme Court previously ruled in Arthur v. Arthur (2010), that the best interests determination in petitions for relocation must be made at the final hearing and must be supported by competent, substantial evidence.

The court in this case decided that because the relocation provision in the final judgment would have allowed the child’s Father to relocate without satisfying the requirements of Florida Statute § 61.13001, and since the trial court found that relocation was in the child’s best interest without current, competent, substantial evidence to support it, the decision was in error.

Florida law provides that if the parents and those entitled to access or time-sharing with the child agree to the relocation of the child, they’re able to satisfy the requirements of the law 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.

But when the other parent doesn’t consent or agree to the relocation, like the child’s Mother in this case, the parent seeking relocation must file a petition to relocate with the court and serve it on the other parent. Because the trial judge erred in this part of the divorce decree, this part of the case was reversed and vacated. Horn v. Horn, __ So. 3d __, 2017 Fla. App. LEXIS 364 (Fla. Dist. Ct. App. 1st Dist. Jan. 17, 2017).

If you are a parent who’s seeking to move more than 50 miles away or a parent that is served with a petition for relocation from your ex, contact Michael DeVoe, an experienced family law attorney with offices in Kissimmee and Orlando. Michael can answer your questions about the potential relocation of your child, as well as any other family law concerns, such as child support modification, custody, and injunctions. Contact Michael DeVoe today for a free consultation at (407) 284-1620 or use the easy-to-use email form on our website.

Creating a Time-Sharing Schedule For Your Children

Your time-sharing schedule should include:

• An everyday schedule that shows when the child is with each parent on weekdays and on weekends
• A holiday schedule that shows which parent the child is with for holidays
• A summer break schedule that shows when the child is with each parent during summer break

Other things to consider as you make your schedule:

• Parents should work together to make a schedule they both like

• Your schedule should give your child frequent and consistent contact with both parents

• Your child’s age usually determines how long and how frequent visits are

• Usually all the children in a family stay together for time-sharing

• If parents are not able to agree on a schedule, the court will establish the schedule

Having the courts establish a time-sharing schedule 

Most courts follow similar guidelines when setting up a time-sharing schedule. For the everyday schedule for children 3 and over, there will be one residential parent, usually the one who lives near the child’s school, and one nonresidential parent. The child visits the non-residential parent:

• One evening during the week after school or work to 8:30 pm

• Every other weekend from Friday after school or work to Sunday evening at 6:00 pm or Monday morning when school starts

• If the child has school off on the Friday before the non-residential parent’s weekend, the weekend time starts on Thursday.

• If a child has school off on the Monday after the non-residential parent’s weekend, the weekend ends on Monday evening or Tuesday morning when school starts.

Factors That Go Into a Child Custody Decision

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The following are the factors a judge considers when making a decision about child custody:

• your child’s age
• the mental and physical well-being (or lack of it) of each parent
• each parent’s care taking capacities and the home environment that each parent could provide to the child
• the role of each parent thus far in taking care of the child
• the child’s relationship to each parent
• the time available to each parent to be with the child, as the judge may wish to maximize the child’s time with a parent as opposed to a babysitter or daycare center
• the environment that the parent can create for the child
• the presence of siblings in the family and the siblings’ relationship to each parent and to each other
• prior bad acts of either parent (as, for instance, abuse and neglect)
• parental drug or alcohol problems
• religious factors
• the willingness of each parent to keep the other parent involved in the child’s life and to facilitate the other parent’s access to the child
• each parent’s adult relationships including non-marital sexual relations.

In the long run, the judge wants to do what’s best for the child. If time sharing and 50/50 custody is a possibility for the child, that will be the plan set in place.

What Happens Next

When a relocation is requested, a parent is required to submit a new parenting plan if the current parenting plan is unable to be fulfilled. This means, that if a parent has regular weekend visits under the current plan and the relocation will cause those weekend visits to be impossible, the relocating parent must submit a new parenting plan. This new parenting plan should account for the relocation in the visiting terms.

Photo by William Grimes.

However, even if a new parenting plan is submitted, the relocation can still have objections. After a parent is notified of a relocation proposal and they contest, the child cannot be legally moved until a hearing takes place. The hearing will usually be the time where the parent who objects can bring up their concerns and proof of negative consequences of the relocation for the child. Depending on the severity, the negative consequences may be enough for a judge to reject the relocation proposal.

In most cases where there is regular visitation between both parents, judges go into relocation situations with two assumptions: either option is not good for the child and the parent will move no matter what. The judge usually understands how difficult the move will be on the child. Either way, they are being taken from their home or their parent. In addition, the judge doesn’t typically rule that a parent cannot move, they’re simply called in to decide whether or not the child can move with the parent.

Always Consult a Family Law Attorney

If you’re considering moving and taking your child with you, consult a lawyer as soon as possible. The future for you and your child seems less chaotic when you know what to expect in this process. The attorney can provide consultation and clarification for you so this time doesn’t seem so stressful.

Child custody in Florida

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Florida law aims to give each parent equal rights to care for their children and does not use the term custody in their statutes nor does the law typically name a primary and secondary parent. Because it is usually in the best interest of the children, both parents usually have time sharing schedules with their children. Because the family’s time sharing arrangement is made based on the family’s situation directly after the divorce, it is commonly changed. If one parent moves more than 50 miles from the other parent, they are required by Florida law to notify the other parent.

Relocating your child in a divorce

If both parents agree on the relocation of the child, the moving parent must get a written agreement from the other parent that reflects that parent’s consent, visitation rights and any transportation arrangements made.

If the parents cannot agree, the moving parent must file a Notice of Intent to Relocate with the court that issued the last custody order and serve the notice to the other parent. This notice must include all of the details of the move including the address, the reason for the relocation and proposed visitation. The court will then hold a hearing to hear evidence from both sides on why the child should or should not be relocated. The court will determine if the move is in the child’s best interest based on the child’s preference, the feasibility of preserving the child’s relationship with the non-relocating parent and the reasons for the relocation.

What factors are considered for grandparent custody or visitation?

Grandparents can be awarded court-granted custody or visitation only when certain statues implemented by the state are met. Each state may consider slightly different factors and it is best to understand these factors before filing a petition with the court. In the state of Florida, the court may order visitation if it is in the best interest of the child and one of the three following conditions have been met:

• The parents’ marriage has been dissolved
• A parent has deserted the child
• The child was born out of wedlock and the parents never marry

How does the court determine the best interest of the child?

Photo by Catherine Scott.

Every court considers the best interests of the child when granting custody or visitation to a grandparent. Before making a decision the court looks at all of the following factors. The absence of one factor make their decision go one way or the other.

• The willingness of the grandparents to encourage a close relationship between the child and parents
• The length and quality of the relationship between the grandparents and child before the divorce
• If the child is old enough to express a preference, that preference will be considered
• The mental and physical health of the child
• The mental and physical health of the grandparent
• The judge may also consider any other relevant factors

If you’d like to speak to a lawyer about your grandparent rights, contact us here.

If a divorced couple that shares custody of their children needs to relocate over 50 miles away from the other parent, a relocation request should be filed and approved by the court. There are several reasons a relocation can be approved, possibly because one parent got a new job or to be closer to extended family who can help with support and childcare. The relocation can either be a voluntary agreement or a contested request.

A voluntary agreement for relocation with children

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If the relocation is agreed upon by both parents, a written agreement might be able to be submitted to the court. A judge should approve of the relocation if there is already a court order in place for the child’s living arrangement. If the relocation isn’t approved by a judge it can force the child and the parent to move back to the prior location and even lead the parent to loss of custody.

A contested request for relocation with children

The parent that is not relocating may object to the other relocating with their children. When this happens a contested request must be filed and the court must decide based on the reason for relocation whether the parent may be permitted to move the children. The court bases their decision on objective evidence and criteria determined by the state’s law.

Finding legal support for relocation

Dealing with filing relocation to the court may take longer than you have time
for. Judicial approval may be expedited and include shorter deadlines that both parities must be aware of. To speak to an attorney about relocating with children, contact the DeVoe Law Firm here.