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Relocation and Time-Sharing
Unfortunately, many of us are related to or have friends who are divorced. Divorce brings about a restructuring of families in which parents have to continue to cooperate and communicate long after the dissolution of the marriage. One of the greatest challenges involves the relocation of the custodial parent after the divorce. One of the divorced parents usually goes from seeing their children on a daily basis to seeing their children on alternate weekends, holidays, and summertime. Relocation often requires that the time spent with both parents is even more diminished as a move can often mean seeing your children four times per year or less. This article will attempt to provide a thumbnail sketch of what is required to relocate in Florida in a manner which will hopefully make sense to both the family law practitioner, the non-family practitioner, and the layperson.
The big change with the new statue Section 61.13001 requires advance notice. Prior to the statute, a non-custodial parent usually found out on short notice that the custodial parent was moving and needed to obtain an emergency hearing which usually did not take place until after the custodial parent had already moved. Now, if the custodial parent is permanently moving more than 50 miles from the non-custodial parents home, a very technical notice must be given. This notice, among other things, must state the new address and phone number, the date of the move, the reason for the move, and a plan for new visitation arrangements. This notice provision applies to parents who are subject to an existing court order or who have a pending dissolution action. It does not have to be a divorce but can apply to any custody order involving children. This, however, does not mean that a person can just move away just because there is not an existing court order or pending dissolution action.
The big question that we will all be asked is what happens if you do not give notice. If notice is not given, the Court could hold the custodial parent in contempt, consider it to give the non-custodial parent custody of the children, consider it to not allow the move, or require that the children be returned. In short, a parent does not want to move without the other parent's written permission or Court Order. The problem is going to be, however, that unless you are a family law attorney or the procedure is spelled out in an existing Court Order, most people are not going to be aware of the requirements. Further, even if the requirements are known, the notice requirements are highly technical and will be difficult for a layperson to ensure compliance with the statute.
Now comes the question of what the non-custodial parent should do to protect their rights. If they agree to the relocation and the new terms, the parties can enter into a consent order modifying their existing court order and the matter is finished (provided the Court approves it). If relocation is objected to by the non-custodial parent, that parent must file a written objection with the Court and serve a copy on the custodial parent. Like the notice to relocate, this notice is very technical and must state a basis for an objection and all of the reasons supporting that basis including the extent of that parent's involvement with the children. Again, this will be very difficult for the layperson to ensure their compliance with the statute.
If the parties cannot agree upon the relocation, the Court will have to determine what is appropriate. The new statute builds upon earlier statutes and case law and sets forth a number of factors that the Court must consider. Among other things, the Court will consider the family ties to relocating parent, the age and needs of child, substitute visitation arrangements, the children's preferences, quality of life, reasons for move or objection, employment opportunities for relocating parent, good faith, employment opportunities for objecting parent, and any history of substance abuse or domestic violence. There is no presumption for or against the relocation.
If the Court does allow the relocation, the Court has the authority to restructure contact and visitation between the non-custodial parent and the children. In Jacksonville, this will probably involve the requirement of the Fourth Judicial Circuit Long Distance Guidelines Visitation. Transportation and the costs of same are also allocated by the Court. The relocating parent could be ordered to provide transportation or assume more of the cost. The Court may expand telephonic contact or even include the use of email, web cams, or Internet messaging to ensure meaningful contact. Some custodial parents set up web sites on MySpace or other sites that can include photos and school work so that non-custodial parents can have almost daily access. Cell phones now provide inexpensive long distance phone communication. In essence, technology has softened the blow of relocation in some respects.
When asked about relocation, the question we all should ask is whether the move is good for the parent or good for the children. There are always good reasons for and against relocation and such decisions must be very difficult for the Court. The reality is that the children probably need both parents to fully develop into happy and healthy adults. Parents should be urged to communicate and make these important decisions themselves and not ask a complete stranger to make these decisions for them. It never is easy for a parent to balance future relationships, careers, or opportunities with the need for the children to have meaningful contact with the other parent, but we must try.
In October of 2008, the parenting laws in Florida just got better for families. Prior to the new law, courts used terms such as "primary residential parent" and "visitation" in parenting orders. While "primary residence" was an improvement on "custody", changes were necessary to promote equality and harmony between parents. The new law simply provides for "timesharing". Parties still make decisions together under the concept of "shared parental responsibility", but now courts designate what time is spent with the children by each parent without designating either parent as having "primary residence".
Whereas an order used to read: "A parent shall have the primary residence of the children and B parent shall have visitation from Friday until Sunday". Now orders read: "The children shall be with A parent from Monday until Friday after school and with B parent from Friday after school until Sunday". Note that the new law does NOT mandate equal time for parents. Timesharing is governed by the parents' agreement, court approval, and the children's best interests. Timesharing is set forth in a "parenting plan". Parenting plans are required to be more specific than previous court orders. This will hopefully avoid the problem of parties returning to court for commonly disagreed upon issues which now are already included in the plan.
Even though neither parent has "primary residence", child support may still be paid by one parent. The parent with the "most overnights" typically receives support and the actual amount is calculated based upon the percentage of time spent by each parent, the parties' incomes, and other child-related costs.
While the new law provides tools to be better parents in separate homes, it never can be a substitute for flexibility and compromise. The best parents never need a parenting plan, they just work together to put the children first.
When the Florida court decides on the issue of child custody and visitation, the gender of the parents is not considered. For example, a mother will not automatically receive custody of the children just because she is the mother. The judge must only consider what is in the best interests of the child. Florida divorce law requires Shared Parental Responsibility. This means that even though the child may live with one parent, the other parent has equal say in raising the child. Each party must be consulted on the education, health, religion, and discipline of the child. And, if the parties cannot agree on these important issues, the judge will make the decisions.
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