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"My case was handled quickly and with ease."
01/10/2014
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Factors in Contested Relocation

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Family in need of attorney

The Gainesville – Ocala Relocation Attorneys of the Law Office of Alba & Yochim P.A. discuss the factors used by the court in assessing relocation with a child in cases where a nonrelocating party disputes, or contests to, the relocation. Just as with other determinations concerning a child, the court will evaluate contested relocations based upon a standard of what is in the best interests of the child.

If a parent or other person entitled access to or time sharing with a child, fails to file a timely response to a petition to relocate, a presumption may arise that the relocation is in the best interest of the child. However, if good cause exists for the denial of a relocation request, the court may deny a petition to relocate, even if a parent, or other person entitled access to or time-sharing with a child, fails to file a timely response. In addition, it important to know that Florida Statute § 61.13001(7), provides that a presumption in favor, or against, either parent, will not arise if “the move will materially affect the current schedule of contact, access, and time-sharing with the nonrelocating parent or other person.”

Another important consideration is the distinction between the role the court will play in assessing the best interests of a child, as opposed to the role a parent or other person entitled to access or time-sharing with a child, will play in guiding the court during the assessment process.To understand the procedural role of a parent or other person, it is helpful to know the meaning of the term “burden of proof.”

Black’s Law Dictionary defines ‘burden of proof’ as “[t]he necessity or duty of affirmatively proving a fact or facts in dispute on an issue raised between the parties in a cause.” In applying burden of proof to a relocation determination, the fact or issue in dispute is directly related to what is in the best interests of the child. Florida Statute § 61.13001(8) provides which party has the initial burden, and under what circumstances a burden will shift:

BURDEN OF PROOF.—The parent or other person wishing to relocate has the burden of proving by a preponderance of the evidence that relocation is in the best interest of the child. If that burden of proof is met, the burden shifts to the nonrelocating parent or other person to show by a preponderance of the evidence that the proposed relocation is not in the best interest of the child.

Florida Statute § 61.13001(7) provides the factors the court will use in assessing whether a relocation would be in the best interests of a child. Accordingly, for purposes of meeting a burden of proof, or in challenging whether such burden has been met, it is important to carefully consider each factor contained within the statute, in anticipation of the court’s evaluation of the same.

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In other words, a parent or other person that wishes to relocate must be prepared to demonstrate why the relocation is in the best interests of the child, based upon evidence in accordance with the factors set forth by statute. Alternately, a nonrelocating parent or other person that contests the relocation, must be prepared to demonstrate why the relocation is not in the best interests of the child, utilizing these same factors. Pursuant to Florida Statute § 61.13001(7):

In reaching its decision regarding a proposed temporary or permanent relocation, the court shall evaluate all of the following:

(a) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent or other person proposing to relocate with the child and with the nonrelocating parent, other persons, siblings, half-siblings, and other significant persons in the child’s life.

(b) The age and developmental stage of the child, the needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.

(c) The feasibility of preserving the relationship between the nonrelocating parent or other person and the child through substitute arrangements that take into consideration the logistics of contact, access, and time-sharing, as well as the financial circumstances of the parties; whether those factors are sufficient to foster a continuing meaningful relationship between the child and the nonrelocating parent or other person; and the likelihood of compliance with the substitute arrangements by the relocating parent or other person once he or she is out of the jurisdiction of the court.

(d) The child’s preference, taking into consideration the age and maturity of the child.

(e) Whether the relocation will enhance the general quality of life for both the parent or other person seeking the relocation and the child, including, but not limited to, financial or emotional benefits or educational opportunities.

(f) The reasons each parent or other person is seeking or opposing the relocation.

(g) The current employment and economic circumstances of each parent or other person and whether the proposed relocation is necessary to improve the economic circumstances of the parent or other person seeking relocation of the child.

(h) That the relocation is sought in good faith and the extent to which the objecting parent has fulfilled his or her financial obligations to the parent or other person seeking relocation, including child support, spousal support, and marital property and marital debt obligations.

(i) The career and other opportunities available to the objecting parent or other person if the relocation occurs.

(j) A history of substance abuse or domestic violence as defined in s. 741.28 or which meets the criteria of s. 39.806(1)(d) by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.

(k) Any other factor affecting the best interest of the child or as set forth in s. 61.13. (See, Best Interest Criterion in Child Custody).

Understanding the assessment process involved with a relocation determination requires an analysis of the unique factual circumstances associated with a particular family’s scenario, in conjunction with the procedures set forth by Florida’s relocation statute.

While it is important to pay careful attention to the procedural requirements associated with filing or responding to a petition to relocate, the more crucial consideration is often a party’s preparedness to address issues concerning the best interests of the child, during an evidentiary hearing or nonjury trial. Adequate preparation demands full comprehension of the statutory factors that will be used by the court in making its determination.

Whether you are seeking relocation with a child, or wish to contest to relocation, retaining an experienced family law attorney, who will advocate on your behalf, can ensure full protection of your legal rights and interests. Let the Gainesville Child Custody & Relocation Attorneys of the Law Office of Alba & Yochim P.A. put our decades of combined experience to work for you.