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I have shared custody (week on week off) of my 2 children…

Customer Question
I have shared custody...

I have shared custody (week on week off) of my 2 children with my ex-husband. I just remarried and my current husband has joined the Army. He is set to graduate AIT in December. I want to be able to move with my children to his FDS. What all do I need in order to be able to do this?

Lawyer's Assistant: Are you overseas or stateside?

I'm stateside. I live in Florida currently.

Lawyer's Assistant: Have you talked to anyone in the chain of command about this?

Not yet. Neither he nor I know who to go to about this issue.

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

I have in my parenting plan with my ex-husband that neither of us can move without the others permission.

Submitted: 11 months ago.Category: Military Law
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Answered in 6 minutes by:
9/8/2017
Military Lawyer: Michael Bradley, Lawyer replied 11 months ago
Michael Bradley
Category: Military Law
Satisfied Customers: 1,688
Experience: Owner at The Protection Group LLC
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once you find out where he is going, you can ask him to allow you to move

if he denies, then you need to request the court's permission to move

the judge will make the ultimate decision

Florida's Relocation Statute has several definitions which are important. It defines what is "Relocation" 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. The change of location must be at least 50 miles from that residence, and for at least 60 consecutive days not including a temporary absence from the principal residence for purposes of vacation, education, or the provision of health care for the child.

Under the Florida's Relocation Statute, the parent who wants to move the minor child from his/her current residence may do so in two ways:

  1. The parents may agree to the relocation of the child. However, this agreement must be in writing and contain certain legal terms regarding same. It is our opinion that the agreement must be approved by a Court order prior to the relocation. OR
  2. If the parents are not able to agree to the relocation of the child, the interested parent must file with the appropriate Court a "Petition to Relocate". This is a legal process which we consider very complex. Florida law is very specific as to what the Petition to Relocate contains, how it must be delivered to the other parent, what language and content should it have, and many other legal requirements.

The Florida Relocation Statute is severe and clear as to the legal consequences for a parent not following it. It states:

Relocating the child without complying with the requirements of this subsection subjects the party in violation to contempt and other proceedings to compel the return of the child and may be taken into account by the court in any initial or postjudgment action seeking a determination or modification of the parenting plan or the access or time-sharing schedules as:

  1. A factor in making a determination regarding the relocation of a child.
  2. A factor in determining whether the parenting plan or the access or time-sharing schedule should be modified.
  3. A basis for ordering the temporary or permanent return of the child.
  4. Sufficient cause to order the parent or other person seeking to relocate the child to pay reasonable expenses and attorney's fees incurred by the party objecting to the relocation.
  5. Sufficient cause for the award of reasonable attorney's fees and costs, including interim travel expenses incident to access or time-sharing or securing the return of the child."

So, moving the child without following the Florida Relocation Statute's requirements could end up in the moving parent losing custody to that child.

Please notice that the Florida Relocation Statute mentions court orders entered after, or cases pending at or after, the date of October 1st, 2009. However, make no mistake that, although the Florida Relocation Statute does not strictly apply to the relocation of minor children under Court orders entered prior to October 1st, 2009, removing a child when a Court order speaks as to visitation and custody without first seeking a modification of the order through the Court system may trigger a petition for change of custody and/or a contempt action by the other parent.

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Military Lawyer: Michael Bradley, Lawyer replied 11 months ago

If the parents don’t agree to the relocation, the parent wishing to move must file a petition to relocate with the court and serve it on the other parent. The petition must include the following information:

  • the address and phone number of the place where the parent wishes to relocate
  • the date of the proposed relocation
  • the reasons for the relocation, including a copy of the written job offer, if applicable
  • the proposed visitation schedule after relocation, and
  • the proposed plan for transportation.

After the non-relocating parent is served with this notice, he or she has 20 days to file a response. If the non-relocating parent doesn’t respond, the court can grant the relocation request without a hearing, so it’s imperative that the non-relocating parent respond or quickly retain an attorney to help prepare the response. The response should include the reasons why the move shouldn’t be allowed and a statement of how much the non-relocating parent participates in the child’s life.

On the other hand, if a parent relocates without getting court approval, a judge may find that parent in contempt of court. The judge will also take an unapproved move into account when deciding whether to order the parent to return the child, pay the other parent’s attorneys’ fees, modify the custody arrangement in favor of the other parent, or impose other sanctions (penalties).

Some parents may wonder whether the court having control over their ability to relocate with a child violates some principle of law; some have appealed attempting to claim that having to get court permission to move with a child violates their fundamental right to travel. Florida courts have ruled consistently that it does not. It’s not the parent that is being restricted from moving, it’s moving with a child whose other parent has custodial rights that must be protected. Certainly, a parent who wants to move with a child will be allowed to show how the move may benefit the child’s life, but those benefits must be weighed against the harm from diminishing the other parent’s relationship with the child.

How Courts Decide Whether to Allow a Child to Relocate with a Parent

When deciding whether a planned move is in the child’s best interests, the court will consider several factors, including each of the following:

  • the child’s relationship with both the relocating and non-relocating parent
  • the child’s age and current needs
  • the impact the move will have on the child’s development
  • the ability to maintain the relationship between the child and the non-relocating parent
  • cost and logistics to maintain visitation between the child and non-relocating parent
  • the child’s preference
  • whether the relocation will improve the lives of the parent and child
  • the parents’ reasons for and against the relocation
  • whether the relocation is necessary for financial reasons
  • whether the relocating parent is attempting to move for good faith reasons
  • whether the non-relocating parent has complied with paying child support, alimony, and division of marital property, if applicable
  • whether either parent has had a history of substance abuse or domestic violence, and
  • any other factor affecting the child’s best interest.

The parent trying to relocate has the burden of proving that the move is in the child’s best interest. The court will schedule either a hearing within 30 days of the motion being filed, or a trial within 90 days of the filed motion.

In one 1996 case, a mother moved her children to another state without prior court approval. The father filed a motion to hold the mother in contempt for moving, and the mother then made a request to relocate. The court in that case found that the mother’s reasons for relocating were dubious, and there was evidence that the move might not be in the children’s best interests—particularly due to the loss of the relationship with the father. The court also noted that there was evidence the mother might not comply with the substitute visitation, so the court denied her request.

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