Relocation
Can a parent relocate with their child without the other parent’s permission? What are Florida’s custody laws for unmarried parents moving out of state or wanting to move out of state? The rights of the parent actually depends on the situation however, typically a parent cannot just move out of state without the other parent’s permission. If the parent is a father the father’s rights depends on his status with the child. If the Father is the legal father or has been adjudicated the legal father of the child, he has more rights than someone who was not. The Different Statuses of a Father Former Husbands The father with the strongest rights are those that had children while they were married. In terms of Florida custody laws for unmarried parents moving out of state, former husbands have the strongest rights. Children born during the marriage are presumed to be the Husband’s even if those children are not biologically theirs. When the parents divorce there is an order on time-sharing and parental responsibility. Depending on the language of the order, a mother would likely need permission from the father or the Court to leave further than 50 miles from the father or the state. Legally Adjudicated the Father (Paternity Action) Next is the situation of a father who was never married with the mother of his children but is legally adjudicated the father. This means that when the parents broke up one of the parents started a paternity action in court and then received a court order that said that he is the legal father of the children and governed the rights for visitation or time-sharing and parental responsibility or custody. Again, depending on the language of the order, a mother would likely need permission from the father or the Court to leave further than 50 miles from the father of the State. Fathers not Legally Adjudicated the Father (No Court Order) Lastly is the situation where a father has not been adjudicated the legal father of the child by court order. In terms of Florida custody laws for unmarried parents moving out of state, biological fathers without a court order adjudicating them the legal father have the least amount of rights. Typically this father has little rights if the mother wants to leave the state. However, there is a criminal statute in which a father may have some recourse. This should only be used in extreme situations however. Fla. Stat. 787.03(2) states that in the absence of a court order determining rights to custody or visitation with any minor, any person who interferes with custody rights of another parent commits a third degree felony. Relocation Requirements for Those with Time-Sharing Orders When there is an order on time-sharing and one of the parents seeks to relocate with the children, they must follow the rules set forth under Fla. Stat. 61.13001. According to the statute, a “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. The change must be at least 50 miles from that residence, and for at least 60 consecutive days not including a temporary absence for vacation. If a parent hopes to relocate, they must either obtain written permission from the other parent or petition the court. There are strict requirements within the statute for a petition for relocation. If a petition is filed and served on a parent, that parent has to respond within thirty days of receiving the petition. This is very important. If that parent doesn’t respond within 30 days then the court will presume that relocation is in the child’s best interests and the court will allow the relocation. If the parent replies in time, the court may do one of a few things depending on the situation. They may grant a temporary restraining order restraining the relocation of the child or they may grant a temporary order permitting the relocation of the child pending final hearing. The temporary relocation may be granted if the court finds that the petition to relocate was properly filed and if at the preliminary hearing the evidence presented demonstrates a likelihood of success on the final hearing. The findings to support the temporary order would need to be the same factual basis as would be necessary to support the permitting of relocation and a final judgment. The parent petitioning the court for relocation has the initial burden of showing that the relocation is in the best interest of the child. The petitioner’s burden is by a preponderance of the evidence; slightly more than 50%. If the petitioning parent meets that burden then the burden then shifts to the non-relocating parent to show by a preponderance of the evidence that the proposed relocation is not in the child’s best interest. How to prepare for a Relocation Case You should consult with an attorney if a petition for relocation suddenly becomes possible in your life. Depending on the situation there are a number of strategies that can be employed. When courts are faced with a petition to relocate they will find the following helpful in their decision: the level of involvement of the non-relocating parent in the child’s school, extracurricular activities, the non-relocating parent’s ability to co-parent with the other parent (do they work with the other parent or are they difficult), etc. Make sure that you document your dealings with the other parent. The reality is that a parent will need to present evidence in a hearing if this were to come up. If you have any more questions about this or any other area of family law, go to http://www.jpalawfirm.com/contact.html to schedule a consultation.
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AuthorEach Blog is written by Jesse Philippe-Auguste, Esq. Archives
January 2020
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