Articles Posted in Child Relocation

A child relocation case was recently decided by the Florida Court of Appeal in a case captioned C.G. v. MM. In this case, the mother appealed the trial court’s decision concerning custody and visitation. The parents were unmarried and separated in 2010. They had one child. The parties did not enter into a formal parenting plan, however, they divided their timesharing equally. Eventually, the mother entered into a new relationship and had a second child with her boyfriend. The mother lived in Pinellas County. She decided that she was going to move to Hillsborough County at some time in the future.

At trial, the judge awarded the father majority timesharing and granted the parents shared parental responsibility. The trial court also ruled that when the mother moves to Hillsborough County, during the school year, the child was to spend more timesharing with the father. The mother received timesharing every other weekend, and the parties were to equally divide the holidays. The ruling was based upon the mother’s anticipated move to Hillsborough County.

The Florida Statues set forth the procedure to relocate a child. Unless the parties can agree to the relocation, the parent desiring to relocate must file a Supplemental Petition for Relocation. The parent desiring the relocation bears the burden of proof, by a preponderance of the evidence, that the relocation is in the child’s best interest. Once that burden of proof is met, the burden of proof shifts to the objecting parent to demonstrate that the relocation is not in the best interest of the child. 

A Child Relocation case was recently decided by the Florida Court of Appeal in a case captioned Castleman v. Bicaldo. In this case, the mother emigrated from the Philippines to the United States in order to marry the Father. As a result of the marriage, she was able to obtain a Green Card. After 26 months of marriage, the Father filed for divorce. The trial judge issued a Final Judgment in which the Court ruled that if Wife’s citizenship application was denied, she would be allowed to move to the Philippines with her child. The trial court found that the relocation statute did not apply to persons who are deported. The Court of Appeals reversed this judgment.

The Court of Appeal held that the Florida Parental Relocation Statute applies to persons wishing to relocate voluntarily as well as to those who are forced to relocate by the government after their marital status is changed. The Florida Child Relocation Statute contains ten specific factors that trial courts are required to apply in making determinations regarding child custody relocation. These ten factors are to be applied in cases involving involuntary as well as voluntary relocations.

Additionally, the trial court in this child relocation case erred in making the determination that it would be in the child’s best interest to relocate with the mother in the event that she was deported. The Florida Court of Appeal stated that trial courts are not equipped a “crystal ball” that enables to determine that relocations will be in the best interests of children at unspecified times in the future. The Court of Appeals stated that trial courts are unable to predict how future changes might affect the statutory factors.

In a recently decided child relocation case, the parties had two minor children. The Wife wanted to relocate to Virginia with the children. The Husband opposed the relocation. The parties lived in Virginia for many years prior to moving to Florida. After the parties lived in Florida for two years, the wife filed a petition for divorce. The wife requested that the trial court permit her to relocate with the children because she believed that the relocation would be in the children’s best interest. Additionally, she argued that the relocation would eliminate her need to constantly travel for work.

The Florida Court of Appeal ruled that the parent desiring to relocate has the initial burden of proof to show that the proposed child relocation is in the best interests of the children. Once the parent desiring to relocate meets this initial burden of proof, the burden of proof then shifts to the parent who opposes the relocation. A trial court is not permitted to permit or deny a relocation based on events that may occur in the future. A trial court cannot consider events that are anticipated or have the potential of occurring in the future. Relocation decisions must be made as of the time that the final hearing takes place. A court may not make its determination based upon whether a relocation would be in the best interests of the children in the future, because the relocation factors could change with the passage of time. A trial court cannot attempt to predict whether an event will or will not occur in the future and cannot base its decision upon an attempted prediction.

To speak with a child relocation attorney in Palm Beach Gardens, Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

In Florida, child relocation is defined as a change in the location of the principal residence of a parent from his or her principal place of residence at the time of filing the pending action to establish or modify time-sharing or at the time of the last order establishing or modifying time-sharing. The change of location must be at least 50 miles from that residence. In Dickson v. Dickson, the Court of Appeal recently decided a case where the parties were married in 2003. At the time of their divorce, they had one minor child. The final judgment in 2011 provided that the child would primarily live with the mother in Lake County, but would stay with the father Wednesday nights and alternating weekends. The judgment did not prohibit relocation, however, it gave the parties shared parental responsibility. In 2014, the mother decided to move from Lake County.

The father objected to the child relocation. The trial court determined that the mother violated the final judgment by relocating. The Court of Appeal held that the mother’s move did not violate the final judgment or the relocation statute. The final judgment did not expressly prohibit the move.

Further, section 61.13001(e) defines relocation of a child as a change in the location of the principal residence of a parent from his or her principal place of 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.

In a child relocation case, the parent with substantial time-sharing and the parent who does not have substantial time-sharing are both required to seek court permission before relocating. In Brooks v. Brooks the trial court ordered the Father to file a petition to relocate pursuant to section 61.13001 when he moved from Sarasota to Hallandale Beach. The Florida Court of Appeal affirmed this decision. The Florida Court of Appeal reasoned that when Chapter 61 was rewritten in 2008, the legislature moved away from terms such as “primary residential parent” and “nonresidential parent.” Instead, the legislature adopted terminology such as “time-sharing”. Section 61.13001(3) requires a parent seeking relocation to file a petition to relocate. Relocation is defined by section 61.13001(1)(e) as ‘a change in the location of the principal residence of a parent…from his or her principal place of 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.” Since this definition excludes any reference to the relocating parent being the primary residential parent, the lower court ordered the Father to file a relocation petition before moving.

The Florida Court of Appeal reasoned that even though the title of the child relocation statute, section 61.13001 should be considered along with the statutory text, that title, “Parental relocation with a child” must be read in conjunction with and does not override the text of the statute. And the text in multiple places indicates that even a noncustodial parent with visitation rights would have to file a petition to relocate. Therefore, the Second District Court of Appeal in Brooks v. Brooks disagreed with the First District Court of Appeal in Raulerson v. Wright, 60 So. 3d 487,489 (Fla. 1st DCA 2011) and held that the Father, even as a noncustodial parent, was required to seek court permission before changing his residence, and it was not an abuse of discretion to compel him to do so after the fact.

To speak with a child relocation lawyer in Boynton Beach, Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

The child relocation statute does not apply when the parent has relocated prior to the date of the filing of the dissolution petition. In Rolison v. Rolison the Florida Court of Appeal recently stated: “Appellant (the Father) appeals a non-final order denying his emergency verified motion to compel Appellee (the Mother) to return the parties’ minor children to Florida. We affirm the trial court’s order, which correctly found that section 61.13001, Florida Statutes (2013), Florida’s relocation statute, did not apply, as the Mother moved to Georgia before the Father filed for dissolution. The Father filed a petition for dissolution of marriage and other relief on February 21, 2014. The trial court denied the Father’s emergency motion, finding that section 61.13001 was inapplicable, because it only applied to a child’s relocation or proposed relocation during a pending proceeding.

Although the result here may be troubling, the plain language of the relocation statute applies only where a parent’s principal place of residence changes “at the time of the last order establishing or modifying time-sharing” (which is not applicable here), or “at the time of filing the pending action.” § 61.13001(l)(e), Fla. Stat. The Mother’s location was already in Georgia when the Father filed the pending action; as such, in accordance with section 61.13001, she did not have to seek permission from the Father or the court to move there…Based upon the definition of relocation under section 61.1300l(l)(e), and citing the Second District’s opinion in A.F. for support, the Fourth District, in dicta, stated that “the mother is correct in arguing that (she had already moved to Louisiana prior to the father’s filing of the petition to determine paternity or any order establishing or modifying time-sharing, then she is not subject to the relocation statute.”

To speak to a relocation attorney in Jupiter, Florida, call Matthew Jay Lane & Associates, P.A. at (561) 363-3400.

In a child relocation proceeding, when a parent violates a pretrial order addressing the removal of the child from the jurisdiction of the court, it is well within the discretion of the trial court to award sole responsibility to the parent who is properly before the court and compliant with the orders of that court. “Claudia Herrera-Frias appeals the judgment of dissolution of her marriage to Jesus Frias…She also challenges the trial court’s decision to award her husband sole parental responsibility for the three children of the marriage while giving her limited contact with the children…

The record in this case does not contain a transcript of the final hearing. As a result, we do not know what evidence the trial court considered when making its decision. We gave Ms. Herrera-Frias an opportunity to provide this court with a transcript, but she has failed to provide a transcript. It appears likely that neither party arranged for that hearing to be recorded. The record reflects that Ms. Herrera-Frias has not complied with the judgment on appeal. Prior to the entry of the final judgment, she willfully disobeyed a court order, fleeing to Mexico with her three children. She has not returned the children to the United States, despite the fact that at least one of the children is a United States citizen. This court presumably had the authority to dismiss this appeal because of her noncompliance. See Gazil v. Gazil, 343 So. 2d 595 (Fla. 1977). We have not dismissed the appeal because we are aware that proceedings are pending in Mexico seeking the return of these children to the United States and we want that court to have confidence that this court has accorded a full measure of due process to Ms. Herrera-Frias…Concerning child custody and child support, again our review is hampered by Ms. Herrera-Frias’s failure to take the steps necessary to provide a record to this court.’ Under Florida law, it was her responsibility to take those steps if she wished to challenge a decision by the trial court that was dependent upon the evidence and arguments before that court. See Fla. R. App. P. 9.200(e); Carney v. Carney, 861 So. 2d 1272 (Fla. 1st DCA 2003). When a parent is in willful violation of a pretrial order addressing the removal of the children from the jurisdiction of the court, it is well within the discretion of the trial court to award sole responsibility to the parent who is properly before the court and compliant with the orders of that court.”

To speak with a Florida child custody relocation attorney about child relocation, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

In a child relocation proceeding, when the parties’ settlement agreement expressly prohibits a move, the party who seeks to relocate must show a substantial change in circumstances to justify the relocation. In Moore v. McIntosh the Florida Court of Appeal recently stated: “The trial court erred as a matter of law by modifying the parties’ custody arrangement after finding that the parties’ relocation to different cities in Okaloosa County, which resulted in each of them living twenty miles from their child’s school in Okaloosa County, constituted a substantial change of circumstances.

Courts have repeatedly found that child relocation does not itself constitute a substantial change of circumstances warranting modification of custody. See Ragle v. Ragle, 82 So. 3d 109 (Fla. 1st DCA 2011) (moving to a new home 28 miles from the father’s previous home characterized as a “minor relocation”); Ogilvie v. Ogilvie,954 So. 2d 698 (Fla. 1st DCA 2007) (relocation from New York to Florida); Sotomayor v. Sotomayor, 891 So. 2d 559 (Fla. 2d DCA 2004) (relocation from New York to Florida, when visitation agreement contemplated that the parents would live in the same city); Zugda v. Gomez, 553 So. 2d 1295 (Fla. 3d DCA 1989) (relocation from Florida to Michigan). When the parties’ settlement or visitation agreement expressly prohibits a move, thus establishing that the parties had previously litigated the issue, the party who seeks to relocate must show a substantial change in circumstances to justify the relocation. Mize v. Mize, 621 So. 2d 417, 420 (Fla. 1993) (visitation order provided that ‘[b]oth parties are expressly forbidden to move [the child] from the State of Florida without the express permission of this Court’). In contrast, in the case at bar, the Marital Settlement Agreement incorporated into the Final Judgment of Dissolution provides: It is further anticipated that the parties shall continue to reside in close proximity to one another, i.e., in the same school district. If either party chooses to relocate outside the school district, then the relocating party shall give the other party at least ninety days written notice of same. This will allow enough time to negotiate a stipulated resolution of related issues or the time to attend mediation or obtain judicial relief. Although this expresses a hope that the parties would remain in close proximity to each other, the possibility of relocation is expressly contemplated. Moreover, both parents are still in the same Okaloosa County School District.”

To speak with a divorce attorney in Jupiter, Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

In a child relocation proceeding, the court may only order temporary relocation where the relocating parent files and serves a petition. In Milton v. Milton, the Florida Court of Appeal stated that: “This Court reviews relocation determinations for abuse of discretion; however, the question of whether the trial court properly applied the relocation statute is a matter of law, reviewed de novo. Raulerson v. Wright, 60 So. 3d 487, 489 (Fla. 1st DCA 2011). Here, Mr. Milton relies on section 61.13001, Florida Statutes, and Raulerson, to assert that because Mrs. Milton did not comply with section 61.13001, the trial court erred in permitting the child’s relocation, even if temporary.

He is correct. Section 61.13001(3)(a) unambiguously requires that, absent agreement of both parents, a parent wishing to relocate file a petition and the petition be served on the other parent. §61.13OO1(3),Fla. Stat. Only where the relocating parent files a proper petition may the court order temporary relocation pending final determination. § 61.13001 (6)(b). This Court has previously made clear that these requirements are unambiguous and are “a clear statutory mandate.” Raulerson, 60 So. 3d at 490; see also Rivero v. Rivero, 38 Fla. L. Weekly D811, 2013 WL 1439731 (Fla. 4th DCA Apr. 10, 2013). Here, there was no such agreement or petition. And, Mrs. Milton does not contest that she and the child relocated to New York. Accordingly, she is subject “to contempt and other proceedings to compel the return of the child”; additionally, the court may grant other relief, including restraining relocation or ordering the child’s return. § 61.13001(3)(e),(6)(a),Fla. Stat. Therefore, the trial court erred in permitting the minor child’s temporary relocation pending final determination. See Raulerson, 60 So. 3d at 490.”

To speak with a Divorce Attorney in Palm Beach Gardens, Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

Relocation Rulings

Relocation is a change in the location of the principal residence of a parent from his principal place of residence at the time of the last order related to time-sharing, or at the time of filing the pending action to establish or modify time-sharing “Prior to October 1, 2009, ‘relocation’ was defined in terms of a change of the primary residence of the child. Beginning October 1, 2009, ‘relocation’ is defined as: ‘a change in the location of the principal residence of a parent or other person from his or her principal place of 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… Based on section 61.13001 (1)(e) and A. F., the mother is correct in arguing that if she had already moved to Louisiana prior to the father’s filing of the petition to determine paternity or any order establishing or modifying time-sharing, then she is not subject to the relocation statute.” Essex v. Davis. 

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