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Relocation, §61.13001, Florida Statutes

 
Abstract: A parent or any other person entitled to timesharing with a minor child cannot change their principal residence by fifty miles or more for a period of sixty consecutive days without either: 1. Seeking written agreement of persons entitled to timesharing of a minor child, or 2.  Filing and serving a petition to permit relocation with minor child. In either event, the person seeking to relocate must obtain prior court approval. A petition to permit relocation has specific statutory requirements, and if these are not contained in the pleading, then the relocation may be improper. Improper relocation with a minor child can be considered as a factor in modifying the parenting plan and an award of attorney’s fees. If the other person contests the relocation, they must file an answer objecting to relocation. The court will conduct a hearing on the matter and must make a determination based on the statutory factors in 61.13001(7)(a)-(k).  there is no presumption for or against relocation, but the person asking for relocation bears the burden of proving it is in the best interest of the child by a preponderance of the evidence. Florida case law states that the court must make a present-day determination and cannot approve a delayed relocation.

To whom does this statute apply?

The statute applies to legal parents, other persons entitled to timesharing, and even a parent appearing on the birth certificate of the child who is entitled to “access” or timesharing with the minor child. See definitions in § 61.13001(1).  This is broad applicability, and it goes beyond anyone who is the majority timesharing parent. So, even if the client is only getting every other weekend timesharing, he is still subject to the relocation restrictions contained in this section. The statute was broadened in 2009 to require anyone with timesharing to relocate pursuant to this statute. See, Fla. Fam. Law., § 32.30 Rights and Duties of Parents, ¶ 7.

Ø   "Other person" means an individual who is not the parent, but with whom the child resides pursuant to court order, or who has the right of access to, time-sharing with, or visitation with the child.

Ø  “Parent” – Any person who is entitled to access to or timesharing with the minor child subject to the Court’s jurisdiction.  Can qualify as a parent by: court order, written agreement of parties, or by appearing on birth certificate. 61.13001(1)(d).

In what situations would this statute limit a person’s right to relocate?

Relocation for this statute only occurs when someone entitled to timesharing has changed their principal residence over 50 miles from their prior address for over sixty consecutive days.

Ø  "Relocation" means 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. 61.13001(1)(e)

Arguably, a motion to compel return of the minor child before 60 consecutive days could be premature. This definition of relocation does not define relocation in terms of the child’s residence. Thus, a non-majority timesharing parent can be subject to 61.13001, but it is unlikely this parent will be forced to return, instead the court could craft other relief such as an upward modification of child support. See, e.g., Kuttas v. Ritter, 879 So.2d 3 (2nd DCA 2004) (Moving to another state when you have special needs children can constitute a substantial change for modification of child support).

What are the permissible ways to relocate with a minor child?

Method 1: Written Agreement of People entitled to timesharing, 61.13001(2)

-          Person wishing to relocate must enter into written agreement with the person entitled to timesharing.  The written agreement should evince the person entitled to timesharing consents to the relocation, provides a timesharing schedule, and if necessary, details transportation arrangements.

-          If there is any court order or pending action concerning timesharing, the parties must have the written agreement ratified by the court. This can be done without the necessity of an evidentiary hearing.

Method 2: Filing a Petition to Relocate with Minor Child

-          This is covered by Section 61.13001(3), and it contains many detailed specific requirements for this pleading. See  § 61.13001(3)(a)1. – 7.  Requirements. An interesting one is that if the relocation is based upon a written job offer, it must be attached to the petition as an exhibit.

-          The pleading should follow the statutory requirements very strictly, because: 61.13001(3)(e), provides that relocating without complying with this subsection subjects the person to contempt, proceedings to compel return of the minor child, and be used as a factor in determining whether to allow relocation, whether to modify the parenting plan, and as a basis to order attorney’s fees.

-           The petition should be served upon every person who is entitled to timesharing, and it should be sworn under penalty of perjury by the petitioner.

-          The responding party has twenty days to file and serve an answer objecting to the relocation; otherwise, the court shall presume that the relocation is in the best interest of the child. 61.13001(3)(a)7.  If no objection has been filed/ served, then you should probably request an exparte hearing to obtain a court order permitting relocation.

How does one object to a petition to relocate?

-          If the non-relocating person objects to the relocation, they must file an answer objecting to relocation stating the specific factual basis for the prohibition against relocation and a statement of the amount of participation or involvement the objecting party currently has or has had in the life of the child. 61.13001(5). The objection must be filed and served upon the petitioner within twenty days of service of the petition to relocate. 61.13001(3)(a)7.

What factors will the Court consider in making a relocation determination?

The statutory factors are contained in their entirety in §61.13001(7)(a)-(k).  The Court inquires how relocation will affect the child and parents’ lives and the reasons for relocation. The Court may also engage in a full-fledged best interests of the child analysis as provided in § 61.13, Florida Statutes.

Does one have to show a substantial change in circumstances to warrant a relocation?

There is no presumption for or against relocation even if it will materially affect the current timesharing arrangement. 61.13001(7). However, the Third DCA has reversed a relocation because of a party’s failure to prove a substantial change in circumstances, but this may have been heavily influenced by the fact that the parents shared ‘rotating custody’ and the court applied prior law. Paskiewicz v. Paskiewicz [967 So. 2d 277 (Fla. 3d DCA 2007). The court must make a determination considering the statutory factors contained in 61.13001(7)(a) – (k). The party seeking relocation must prove it is in the best interest of the child by a preponderance of the evidence standard.

How soon should hearings be scheduled?

Contested relocations should be given priority on the court’s calendar. If a motion seeking a temporary relocation is filed, absent good cause, the hearing must occur no later than 30 days after the motion for a temporary relocation is filed. If a notice to set the matter for a nonjury trial is filed, absent good cause, the nonjury trial must occur no later than 90 days after the notice is filed. § 61.13001(10). So, if time is of the essence, it may be wise to do a motion to permit temporary relocation with minor child.

Case Law Survey

1.      It is error for a Court to make a determination that a future relocation to happen in three years will be in the best interest of the child. The statute only permits a present-based analysis of the best interest of the child, and Court cannot make future, speculative based decisions concerning a delayed relocation. Arthur v. Arthur, 2010 Fla. LEXIS 41 (Fla. 2010).

2.      Court cannot allow a relocation and then reserve on the issue of establishing a substitute parenting plan/ timesharing arrangement. All issues concerning the best interest of the child must be made at the final hearing. Coyle v. Coyle, 8 So.3d 1271 (2nd DCA 2009).

3.      Relocation from Key West to Atlanta was proper. Mother showed that she had been the primary caretaker, her new husband had a job in Atlanta, she was offered a job there, and she had little career opportunities in Key West. Apparently, the Father relied on his mother to watch child frequently because he was busy working low-paying waiter jobs.  Basically, this court weighed heavily the potential increase in quality of life for the minor child and showed no presumption at all against relocation notwithstanding the Father’s unlikely continued, regular contact with the child. Miller v. Miller, 992 So. 2d 346, 2008 Fla. App. LEXIS 15114 (Fla. 3rd DCA 2008).

4.      Relocation to Texas should be denied  when evidence supported finding that Mother failed to demonstrate that the proposed move would improve the children's school, family, or even home life. Fredman v. Fredman, 960 So. 2d 52  (Fla. 2nd DCA 2007).

5.      Court cannot rely on the speculative hopes and aspirations of a parent who believes they have better career opportunities in another state. There was no error to deny relocation request when Mother had no job opportunities, merely thought she may go back to school, and could not show that the Father would have a meaningful relationship given substitute timesharing. Muller v. Muller, 964 So. 2d 732 (Fla. 3d DCA 2007).

6.      A Court need not necessarily make findings to each statutory factor in a contested relocation. If the parties fail to present evidence regarding all of the factors, the court can properly use its discretion to allow relocation if it would nevertheless be in the best interest of the child. Norris v. Heckerman [972 So. 2d 1098 (Fla. 1st DCA 2008).

7.      In Re B.T.G., 993 So.2d 1140, (2nd DCA 2004) the proper inquiry is not whether the same frequency of contact can be maintained between the child and the non-relocating parent, but whether substitute timesharing/visitation will be adequate to foster a meaningful relationship.

Contact our team of divorce attorneys in Jacksonville, Florida, learn more about relocation, child custody, and spousal support.

By Kenny Leigh