Legal Guide For Moving A Child Out Of Florida

Child with suitcaseFew issues in family law cause as much tension as when a parent wishes to move their child out of the state of Florida. This tension is understandable. If a parent wishes to move, but is told that they cannot take their child with them, then they will be upset. If, on the other hand, a parent is allowed to relocate then the non-moving parent will be equally upset. This dynamic makes such cases difficult to resolve and, as a result, increases the chances that the case will be decided at a Family Court trial. We regularly receive questions from parents regarding the ability to relocate their son or daughter out of state. For understandable reasons, many do not have a full knowledge of state law on this issue and are often unaware of their rights. This is why we have decided to write a legal guide on the topic of moving a child out of, and within, the state of Florida. If you need assistance with such a matter then contact our office today to speak with a Melbourne family law attorney.

This guide is meant to provide basic legal information regarding Florida law and the moving of children. It is not meant to serve as a substitute for sound legal advice. If you are considering moving, or you need to defend against a relocation request, then it is imperative that you speak with a lawyer as soon as possible. A table of contents for the topics discussed in this article is below. You may navigate to a specific section by clicking the “jump to section” link. Topics discussed in this guide will include:

Table Of Contents

  1. An explanation of Florida law regarding the moving of children (jump to section)
    • What constitutes “moving” with a child (jump to section)
    • When a parent is, and is not, required to request permission to move (jump to section)
    • Consequence & remedies for when a parent moves without permission (jump to section)
  2. Factors the Court will consider in a relocation request (jump to section)
  3. Plans to make before submitting a request to move out of state (jump to section)
  4. Requesting Permission to move out of state with your child (jump to section)
  5. The process for dealing a parent who has moved without permission (jump to section)
  6. Dealing with life after a relocation (jump to section)

An explanation of Florida law regarding the moving of children

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Florida is like most other states in that it generally does not allow a parent to move out of state with his or her child without the other parent’s permission. Florida is different from some other states in that it also places restrictions on a parent’s ability to move within the state. Our state’s laws are nuanced, however, when it comes to what will be considered “moving,” and when a parent is actually required to comply with the procedures. It is important to understand each of these nuances as well as the consequences for a parent who moves with their child in violation of our statutes. This section of our guide will discuss each of these matters in turn.

What constitutes moving with a child in Melbourne and other Florida areas?

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Under Florida Statute 61.13001, a parent is considered to have “relocated” with their child if they meet both of the following criteria:

  • They have moved their principal residence at least fifty miles from where it was at the time of the Court’s last custody order or the time an initial case was filed.
  • They have been in the new location for at least sixty consecutive days, not including time spent on vacation, traveling for work, etc.

It is important to note that this provision will apply to parents who are moving their child out of state even if the move will actually be less than fifty miles. This means, for example, that a parent who lives in a Florida border town and moves across state lines with the child will be required to follow the statute, even if they are moving to another town just on the other side of the state border. Also, it is important to note that the address which the Court will use for the fifty mile requirement is that which the moving parent lived at during the time of the most recent custody order. Moving less than fifty miles from such an address, and staying within state lines, will not be considered “relocation” from Melbourne or any other area in the state.

When Florida parents are required to request permission to move their child out of state

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Judge with family law binderAs stated above, statute 61.13001(1)(e) requires parents to gain permission to relocate children if they are moving fifty miles from their address at the time of the previous court order or the time an initial case was filed. In other words, if no custody case has been filed with the Court then the moving parent will not be required to gain permission to leave Florida with the child.[1] This is true even in matters where the parties are married at the time when one parent moves away. [2] This is different from some states, which require parents to gain permission to move out of state with a child even when there is no Court order in place as long as paternity is established.[3] This means that, in Florida, the law is straightforward. If an initial custody case has been filed with the Court, then a parent must comply with the relocation statute. This is true whether the parents are married or unmarried. Likewise, if no custody action has been filed with the Court then the parties, whether married or unmarried, will not be required to follow the statute.

The foregoing rule is best explained through two examples. First, suppose husband and wife are Melbourne residents and have a two-year old son. Wife moves to Georgia with the child and the husband subsequently files for divorce. As part of the divorce case, the father asks that the child immediately return to Melbourne due to Wife’s failure to gain permission to relocate. Since no custody action had already been filed with the Court at the time of the move, Wife will not be considered in violation of the relocation statute. [4] The Court may, however, order the child returned as part of the child custody proceedings, if it still has proper jurisdiction and such a return would be in the best interests of the child (which is a separate discussion from this guide). Now, and second, suppose that an unmarried couple has a pending child custody case and the mother wishes to relocate. She will be required to gain approval for the move due to the fact that a custody action has already been filed by the Court. In other words, the sole factor the Court will consider in determining the applicability of the relocation statute is whether a custody case has already been initiated.

Consequences & remedies when a parent moves a child out of Florida without permission

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If a parent relocates out of Florida in violation of statute 61.13001 then they will face consequences. First, under 61.13001(3)(e), a parent who violates the provision may be held in contempt of court. Such contempt can carry financial penalties as well as jail time. Importantly, the parent will also often be required to return the child to the state. Furthermore, when considering the broader context of child custody and whether the offending parent should be allowed to move with the child, the Court may consider the violation as a reason to a) disallow the move and b) grant custody to the non-moving parent. Furthermore, the offending parent may be required to pay the legal fees which the non-moving parent incurred in having the child returned.

Factors which Courts consider when moving a child outside the state of Florida

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The Court will consider several factors when determining whether a parent should be granted a contested request to move their child outside of Florida. These factors include several which are unique to relocation cases. The Court will also consider the factors typically used in general custody proceedings for determining what is in a child’s best interests. When looking at these factors, the Court will weigh them evenly without one being more important than another. We will discuss each of these considerations in turn.

Child relocation factors which Florida Courts consider under Statute 61.13001

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There are several factors which courts will consider which are unique to relocation/move away cases. These factors can be found in Florida Statute 61.13001(7)(e)-(i). Specifically, these factors which the Court will consider are:

  • 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.
  • The reasons each parent or other person is seeking or opposing the relocation.
  • 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.
  • 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.
  • The career and other opportunities available to the objecting parent or other person if the relocation occurs.

How these factors figure into a Court’s determination is best explained by way of two examples.

Suppose a mother wishes to relocate from Melbourne to Atlanta, Georgia for a new career opportunity. The opportunity provides greater pay and advancement potential than is available to her in Melbourne. Furthermore, the school district to which the child would be moving is consistently ranked higher than the one which the child currently attends in Florida. Also, the child has already been living with the mother on a primary basis and it is shown that the father regularly does not pay his child support. The father’s main basis for opposing the move is that he does not want to be a “summer dad.” Under this scenario, the Court may very well grant the relocation. The mother is moving for an opportunity that she cannot replicate in Melbourne and the child’s educational opportunities would likely be enhanced. Furthermore, it is difficult for the father to argue that the mother should not seek financial opportunity when he is making her financial situation worse by not helping to support the child. Finally, the idea that one wants weekly or more regular visitation with the child is weak. Long-distance visitation schedules are common in the United States. While again, a Court may rule in favor of the mother in this situation, it is important to remember that how a Judge will rule is always going to depend on the specific facts of the case.

Now suppose that a mother is working as a bartender at a mid-level restaurant. She wishes to relocate with the child to Atlanta. She plans on applying for jobs at nicer bars in Atlanta. Her primary reason for wanting to move is that she “does not like Florida.” She submits evidence to the Court showing that the school district which the child would be attending is on par with the current one in Melbourne. The father, who opposes the move, is current on his child support, and spends regular time with the child. Under this scenario, the Court is less likely to grant the move request. The mother could certainly look for better jobs in the Melbourne area and her general happiness is not the Court’s primary concern. She has not shown how the child’s life would be improved by the move and the Court may well not allow it.

Florida courts will also consider the best interests of the child in the context of move away cases

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Statute 61.13001 also spells out other factors for the Court to consider in a relocation request. These factors are those which are typically also considered, as part of the “best interests of the child” analysis, in general custody cases. These include:

  • The preference of the child (assuming they are of sufficient age and maturity)
  • The need for the child to maintain a relationship with a sibling
  • The historical relationship between each parent and the child
  • The needs of the child and the ability of each parent to meet those needs
  • Any history of domestic violence or drug abuse

These factors will be considered in tandem with those listed in the section above.

Suppose, for example, that a mother is divorced from the father and is remarried. Mom has a child with her new husband and she has been the primary caretaker of the first child for several years. Dad’s contact with the child is sporadic at best. Mom wishes to move to Georgia for expanded career opportunities and meets the factors listed in the section above. Under this scenario, it is highly likely that she will be able to move, given the historical relationship that the child has with each parent as well as the child’s need to be close to his or her sibling. While this scenario may seem simple and straightforward, many are not. This is why it is strongly suggested that you discuss your situation with an attorney as soon as possible if you are considering relocating from Melbourne or any other Florida area.

Plans which parents must make before moving children out of Melbourne or other Florida areas

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There are specific plans a Florida parent should make before filing a relocation request with the Court. Having these plans improves the chances of their Petition being granted. Unfortunately, many parents decide they wish to move and do not present an adequate plan to the Judge. Vague relocation plans are more likely to be denied. We will use this section of our guide to discuss specific plans which a parent should be prepared to present to the Court and how the Court is likely to respond to vague requests.

Information which parents must submit to the Court as part of a relocation request

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child in carStatute 61.13001(3)(a) spells out information which a parent must provide as part of a Petition to move the child out of state. This information includes, among other things, the location which a parent will be moving to and, if known, a specific address. Also, the requesting parent must include the date of the proposed move. Additionally, if the request is based on a job offer then written proof of the offer must also be provided to the Court. While this is no means an exhaustive list of information which the Court will consider, it is important to understand that not including this basic information will almost certainly result in one’s request being denied.

The above-mentioned requirements are part of the broader fact that the more specific a relocation request is, then the more likely a Judge is to grant it. Suppose, for example, that a school teacher wishes to relocate from the Melbourne area to San Francisco, California. This move is due to better benefits and the opportunity to advance into school administration. The parent has applied to the new school district and has a written job offer which is submitted. She plans a move date for one month before the school year begins and is able to sign a lease on an apartment for that date. Under this scenario, a Judge is more likely to grant the request due to the high level of specifics. Now suppose that a teacher wishes to move to anywhere in the state of California, but has not yet applied for a job. The teacher asks permission to relocate with the child, sometime in the coming spring, so that she may look for a job. The Court is likely to deny such a request as 1) there is no specific information given about which city the child will actually be living in, 2) there is no guarantee that the teacher will find employment, and 3) the move away date is more vague.

While the Court’s ruling will always depend on the facts of the case, the simple truth is that a more specific move away request will be more likely to be granted than a non-specific request.

How Florida Courts may respond to vague child move away requests

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The more vague a relocation request is then the greater the chance that it will be denied. How quickly the Court will dispose of the Petition will depend on the level of specifics. This is best explained by way of example.

Suppose Jill Parent works as a bartender. She wishes to relocate the child to Los Angeles to be closer to her relatives. She plans to move “during the coming summer” but cannot provide a time. Also, she has not yet applied for jobs but plans on doing so once she arrives. She provides proof to the Court that she has a place to live with the child, in the home of relatives, while she seeks employment. Such a relocation request would probably be viewed as weak by the Court. There are bartending jobs to be had in Florida so her career move would likely be lateral. There are, however, enough specifics in such a request that a Court may allow her request to proceed to trial – even though she would likely need to present a much higher level of specifics at trial. So, while her request to move is most likely an uphill climb, the Court would likely give her the chance to prove her case.

Now suppose that Jane Parent works as a bartender in Melbourne but does not like her job. She wishes to relocate the child to Los Angeles because she “wants a change.” Jane has no relatives already in the city. She informs the Court that she wishes to move with the child, and live off her savings, while she “figures out a new career path.” Given the extremely weak nature of such a request, the Court would be more likely to deny her Petition at an initial hearing. In other words, the matter would be rejected quickly and would be unlikely to proceed to a trial. As a general rule, it is important to understand that the more specific one’s request is, then the more likely they are to gain consideration by the Court.

Requesting permission to relocate one’s child outside of Florida

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If one is planning to move their child away from Florida then there are specific steps in the process which they must follow. A failure to adhere to these steps can result in the parent being required to return to the state with the child. Severe enough violations of the procedures can be a factor which the Court will consider in awarding custody to the non-moving parent. It is, therefore, crucial that a parent understand the process for properly relocating a child out of state. In this section of our guide, we will address the process in the context of three different scenarios. The first deals with how to proceed if the move is agreed upon. The second deals with cases where the parent wishes to move in the future and there is no agreement between the parties. The final scenario is one in which a parent is requesting permission to relocate, before a trial can be held, with the child. We will address each of these scenarios in turn.

Moving a child away from Florida when there is an agreement between the parents

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Parents must follow the requirements of Florida statute 61.13001(2) when they have agreed that one of them may move out of state with the child. Under this statutory provision, parents must enter into a written agreement which:

  1. Confirms that both parents are agreeing to the relocation
  2. Spells out the visitation schedule for the non-moving parent (in addition to other persons who are entitled to visitation)
  3. Spells out an agreement regarding transportation for the visitation

The agreement, once entered into by the parties, must be filed with the Court. Either party may request a hearing within ten days of the time at which the agreement is filed. If neither party requests a hearing within those ten days, then the Court will have discretion to formally modify the custody order per the terms of the agreement.

While the foregoing requirements may seem straightforward, it is important for parents to understand that specifics must be included in an agreement. Any visitation provisions must provide details as to when the child will be in the care of the non-custodial parent. The Court will also require that any holiday requirements be spelled out. For example, a Court would be more likely to deny an agreement in which the parents simply stated that the non-moving party would have the child “for part of the summer.” Instead, the Court would expect a specific part of a specific month in which the child is to travel to the non-moving parent’s and when they are to return. Also, the mode of transportation, and who will pay for it, must be included. The same level of specifics would apply to holidays; the parents would need to spell out which party will have the child for a given holiday in each year as well as any travel arrangements.

If you are a parent who has reached an agreement regarding child relocation, then it is strongly suggested that you retain a family law attorney to reduce the agreement to writing. Doing so increases the chances that the agreement will hold up under scrutiny and will not result in future legal problems. Our lawyers assist those in Melbourne as well as other Florida areas.

Filing a Petition to move a child from Florida when there is no agreement between the parents

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Family court plaqueA parent must file a Petition to relocate if they wish to move their child away from Florida and do not have an agreement with the other parent to do so. The Petition is a document in which the parent will spell out their reasons for wishing to relocate, how the move will serve the best interests of the child, and it must include a proposed visitation schedule for the non-moving parent. Also, the Petition must include a location to which the parent will be moving, a proposed date for the move, and more. The requesting parent must include supporting evidence, in the form of exhibits and other information, establishing that such a request will in fact serve the best interests of the child. Once the Petition is filed it must be served upon the other party and that party will then file their response. If the response is not timely filed, then the Court will have discretion to grant the relocation at that time.

A hearing will be held after the objecting parent has filed their response to the Petition for Relocation. Assuming the requesting parent has not asked for permission to move immediately, which is discussed below, the Court will typically reach one of two conclusions at the hearing. First, the Court may set a trial to determine whether the Petition should be granted. Second, the Court may find that the Petition does not make an adequate case for relocation and may simply deny the matter outright. If this latter option occurs, then the case will be closed and the parties’ current custody order will remain in effect. The reasons for which a Court may deny a Petition outright include a lack of specific information regarding the proposed relocation or a judicial finding that the request simply lacks merit.

If a trial date is set by the Court then each party will need to amass evidence in support of their case. This is done through a process known as “discovery.” This process allows for each side to require that the other answer written questions, that they provide requested documents and records, that they make themselves available to answer questions in the presence of a court reporter, etc. Also, discovery can be used to obtain information from those who are not parties to the case (such as school officials, employers, etc.). Contrary to what is shown in popular media, trials are not won with “surprise evidence” which is uncovered at the last possible moment. Instead, trials are won by presenting evidence which is meticulously gathered through the discovery process. This is why it is important to retain an attorney who is familiar with this process.

The trial process will be similar to that of other family law matters. The requesting party will present their evidence. The opposing party will then present their evidence and the requesting party will then be able to present rebuttal evidence. After the trial is completed, the Court will issue a ruling (the Judge issues the ruling as there are no juries in Family Court). If a parent is unhappy with the ruling then they may file an appeal. They may also ask for a “stay” of the Trial Court’s ruling while the appeal goes forward. If a stay is granted then the ruling will not take effect until the appeal is decided. Trials and appeals are highly complicated matters and it is important to retain a lawyer experienced in handling such cases.

Requesting permission to move a child away from Florida immediately

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There are situations in which a parent may need to move out of state with a child immediately and is simply not able to wait for the above described legal process to be completed. Common examples of this include someone being transferred for work with little notice from their employer or one receiving a job offer with an immediate start date. Our state’s statutes recognize the existence of such situations and they provide mechanisms for those who need to relocate as soon as possible.

Under Statute 61.13001(6)(b) the Court may grant a temporary order granting the relocation. The Court will grant such an order if it finds that a Petition meets the requirements described in an above section of this guide and it appears that the requesting party is likely to prevail at trial. If a parent wishes to move immediately then their lawyer will file a Petition with the Court as described above. Their attorney will also file a request that the Court conduct its initial hearing on an expedited basis. Such a hearing may occur in as little as a few days. If the Court finds that there is good cause for the move, and that the requesting party has a good chance of prevailing at trial, then an immediate move with the child will be allowed. It is important to note that this permission to move is considered “temporary” and that a trial date will be set. The trial will be used to determine whether the move should become permanent. Once a trial date is set, the process for conducting discovery and attending trial is the same as the process described above.

Courts do not grant temporary relocation requests lightly. A Judge will only grant such a request if it is shown that the normal process would frustrate the goal of the move. An example of this would be a job offer which the parent would lose if they were made to wait months for permission to relocate. This high standard for allowing temporary relocations is due to the fact that moving a child, only to have them return to Florida, can greatly damage their development. If you will be filing a request for immediate relocation then you should retain a lawyer with experience in such matters to assist you.

Dealing with a parent who has moved their child outside of Florida without permission

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Parents with JudgeUnfortunately it is not uncommon for parents to move their child out of state without gaining the requisite Court approval. Fortunately, Florida law provides recourse for the non-moving parent who finds themself in such a situation. Under Statute 61.13001(3)(e), the Court may order that the child be immediately returned if such a move has occurred. Also, the Court may hold the offending parent in Contempt of Court. Such a holding can result in financial penalties, and even jail time, for the offending parent. Finally, the Court may consider the violation when modifying the parents’ current custody order and whether custody should be changed altogether.

When a parent has moved out of state without permission then the first step is for the non-moving party’s lawyer to file a Petition with the Court. This Petition will ask for the immediate return of the child and that the other parent be held in contempt. Counsel may ask that this Petition be heard on an expedited basis. Given the serious nature of taking a child without permission, the Court will often hear such requests within a matter of days. If the emergency Petition is granted then the Court will enter an Order instructing law enforcement to assist with the return of the child. Subsequent proceedings will be held once the child is returned. The extent and nature of these proceedings will depend on the broader facts of the case.

It is important to stress that a parent should take immediate action if their child has been removed from the state without permission. The longer that the non-moving parent waits to take action, then the more the Court will doubt their sincerity in opposing the move. By contacting a lawyer and taking immediate steps for the return of the child, one lends weight to the argument that they have been opposed to the move from the beginning.

Life after relocating a child away from Florida

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Once a child has been moved away from the state of Florida then it will be important that the moving parent continues to work with their counterpart. For understandable reasons, the non-moving parent is likely to be quite upset with the situation. The moving parent must ensure that they receive all visitation which they are entitled to under the Court order. Also, the parent who has moved should encourage the child to regularly call and contact the other parent. Finally, it will be important that the moving party share information with their counterpart. This includes providing copies of school records, medical records, and keeping them up to date as to the child’s progress and status.

It will also be important that the parent who stayed behind cooperates with their counterpart. This includes a similar sharing of information when the child is in their care. Also, each parent will need to ensure that they are not disparaging each other in the presence of the child and that they are encouraging the child to stay in touch with the other parent. A failure of either party to meet these standards can result in their quickly going back to court. If a Judge finds that a long-distance visitation order is being violated then they may find the offending party in Contempt of Court. Depending on the nature of the violation, they may also modify the custody order.

Parents in Melbourne or other Florida areas should contact a lawyer regarding their move away case

It goes without saying that move away cases are highly contentious. These types of cases are often complex as no two matters are the same. Retaining an attorney who is experienced in handling such cases can help to ensure that your matter is handled correctly from beginning to end. Counsel can help you to understand whether you have a legitimate case, or a legitimate basis to object to a relocation, and what you need to do to improve your chances going forward. By retaining representation you help to ensure that your rights, as well as the best interests of your child, are protected throughout the process.

Our Melbourne child move away lawyers are experienced in handling such matters and we will give your case the attention it deserves. We believe that everyone is entitled to aggressive representation and we are ready to assist you. Contact us today to schedule an initial consultation. Our office also services clients in the Brevard County cities of Titusville, Cocoa, Palm Bay, Grant, Valkaria, and Rockledge, as well as in the Indian River County areas of Fellsmere, Sebastian, Vero Beach, Indian River Shores, and Orchid.

References

[1] Duryea v. Bono, Fla: Dist. Court of Appeals, 2nd Dist. 2021

[2] Duryea v. Bono, Fla: Dist. Court of Appeals, 2nd Dist. 2021

[3] Druckman v. Ruscitti, 327 P. 3d 511 – Nev: Supreme Court 2014

[4] Rolison v. Rolison, 144 So. 3d 610 – Fla: Dist. Court of Appeals, 1st Dist. 2014