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Relocating with a Child


Family in need of attorney

There are several things to consider when it comes to relocating with a child. As an initial consideration, it is first necessary to determine whether there are any nonrelocating persons entitled access to or time-sharing with a child. The legal entitlement to time-sharing, residential care, kinship, custody, or access to a child can arise by operation of law, valid court order, express written agreement, or a combination thereof.

While relocation issues are more commonly associated with disputes between a child’s parents, if there are any other persons entitled access to or time-sharing with a child, the legal rights of those persons must be taken into consideration as well. For relocation-related discussion purposes, any parent or other person having a legal entitlement associated with a child, may be referred to interchangeably as ‘other person,’ ‘interested person’ or ‘interested party.’ Most relocation proceedings, however, involve only the child’s parents.

Upon identifying all interested parties, the parent or other person wishing to relocate with a child, must then consider the legal rights associated with each of these individuals. In some cases, provisions concerning the relocation of a child may have already been provided for in an order, judgment, decree of record, or agreement, whether extending from a prior, existing, or pending cause of action.

In other cases, where the parties have entered into an agreement regarding residence, access to, time-sharing with, or future relocation of a child, but not in conjunction with a judicial proceeding, the legal effect of such contractual agreements, should also be taken into consideration.

In assessing the legal rights associated with interested parties, it is also necessary to consider jurisdictional matters, including which court will govern over a matter, and under which state’s law. If Florida already has jurisdiction over the matter, Florida will generally retain continuing exclusive jurisdiction, unless and until the entry of a court order transfers the matter to another jurisdiction (with the exception to temporary emergency jurisdiction).

It is also important to consider which court within Florida will oversee a relocation matter. As a general rule, family law matters will continue to reside in the same county for pending actions, and for prior actions, the county that the most recent order was entered, unless and until an order is entered transferring the matter to another county. [See, ‘Transfer of Venue‘].

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Additionally, the date an order was entered must also be taken into consideration. In Florida, determining the application of the relocation statute will depend on two factors: (1) whether an order was entered before, after, or was pending, as of October 1, 2009; and (2) whether the order includes provisions related to the child’s residence or access to a child. If an order was entered prior to October 1, 2009, and includes provisions defining custody, primary residence, the parenting plan, time-sharing, or access to a child, such order will supersede the statute.

If no provisions were included in an order entered prior to October 1, 2009, or if an order was entered after October 1, 2009, the statute will apply. Florida law also provides an exception to invoking the statute for custody orders existing on October 1, 2009 that expressly govern relocation of the child or a change in the principal residence of a parent or other person, when such orders are in conflict with the statute.

Understanding the meaning of relocation, as provided by statute is critical as well. This is particularly important in cases where no provisions concerning residence have been specifically provided for in an order or agreement related to a child, or if the statute otherwise supersedes a provision. Properly assessing legal rights associated with a child’s relocation, involves consideration of the distance, length of time, as well as purpose, of the relocation.

In some cases, relocation may require ratification or modification of an order or agreement. For example, in cases where the parties enter into an agreement for relocation, but there is a pending cause of action, judgment, decree of record pertaining to the child’s residence or time-sharing, ratification of the agreement is necessary prior to relocation.

It is important to know, that even if the parties have entered into a relocation by agreement, an evidentiary hearing may still be requested, in writing, and by either parent or other interested person, so long as such request is made within 10 days after the date the agreement is filed. However, failure to make a timely request, can result in ratification of the agreement based upon the presumption that the relocation is in the best interests of the child.

In other cases, while the relocation statute is not invoked, a parent or other person may want to seek modification in circumstances where the change in location warrants a modification.

Consider the scenario of a relocation that is only 40 miles from the child’s principal place of residence, and therefore would not invoke the relocation statute, but such change would present a hardship for the parent or other person entitled access to or time-sharing with the child. In this scenario, the nonrelocating parent or other person may want to seek intervention with court through modification.

Now, consider your own scenario–while assessing the distance, length of time, as well as purpose of relocation. As with most cases, a proper evaluation of the primary factors associated with relocation also demands an equal consideration of the factual circumstances involved, including prior orders, jurisdiction, hardships to either party, and, above all, the best interest of the child. Suddenly, the relocation may seem more difficult that one initially imagined.

Any matter involving a child can be complex, however, understanding the basic processes and terminology can assist you in making a preliminary determination as to if an issue exists. At the same time, you are always reminded to consult with a licensed attorney experienced in relocation to ensure adequate protection of your legal interests.