If an investigator from the Department of Children and Families (DCF) comes to your house and takes your children away, the next 24 hours will be stressful and confusing. Your sole focus will be navigating the initial steps of the dependency case process. With this guide, we aim to make you more confident of your competency in dealing with the state and your chances of regaining custody of your children.
There is a possibility that the DCF investigator will not take actions to relocate your children. However, if there is evidence of imminent danger due to abuse, neglect, or abandonment, your children will be taken away and a shelter hearing will commence within 24 hours. The shelter hearing’s purpose is to determine the safest living arrangements for your children. A judge will either return your children to your care or keep them in state custody.
The next event in the dependency case is the arraignment hearing. In that hearing, a judge will hear evidence from both sides. An attorney will be assigned to you (your partner will also receive one) if you cannot afford one. At the arraignment hearing, you can admit to the allegations, agree to a case plan without admitting to the allegations, or deny the alleged wrongdoing, which will trigger an adjudicatory hearing.
The adjudicatory hearing is similar to a jury trial in which both sides present evidence and question witnesses. No jury is present for this, though; the judge remains the deciding party.
What’s important to note is the burden of proof needed to decide the case in the adjudicatory hearing is preponderance of the evidence. Unlike the reasonable-doubt burden used in criminal cases, preponderance of the evidence means that the side presenting a more accurate-seeming truth will prevail.
Case Plan/Review Hearing
After the adjudicatory hearing, the judge will decide to either dismiss the allegations or rule in the state’s favor, in which case a disposition hearing will be scheduled. During that hearing, the judge will review a case plan prescribed by the state. You have the option to submit to a case plan by the state before going to an adjudicatory hearing, but at this stage you risk losing complete custody of your children if you do not adhere to the state’s demands. A review hearing will occur six months after the disposition hearing to update the court on your progress with the case plan and determine if changes need to be made.
Permanency Planning Hearing
Several months after the review hearing, the judge will hold another hearing to determine whether or not your children can be returned to you. If the judge decides they cannot, then adoption or a new permanent residence will be decided for your children.
Finding yourself in the situation described above is disconcerting, and you might be feeling panicked. The most important thing is to ensure your child is free from harm and in a stable, loving household. An experienced attorney will help you maneuver the dependency case process and fight for your ability to retain custody of your children. Call us today at (305) 979-2267.
If you disagree with the judge’s decision regarding your family law matter (whether it is about child custody or division of assets after divorce), you can file an appeal with a higher court to have the judgment changed or reversed. Once you appeal the decision, the higher court will review your case afresh, using the evidence presented during the initial trial to determine whether any legal mistakes were made. Here is a brief overview of the Appeals Process in a family law case.
Who can appeal?
A petitioner (the person who initiated the case) or a respondent (the person answering the case) can file an appeal in a family law case. Either party can file an appeal after the adverse decision if they are unsatisfied with the judgment. Keep in mind that you cannot present any new evidence during the Appeal process.
Grounds for Appealing
You cannot file an appeal simply because you do not agree with the outcome. You must have legal reasons to appeal. In most cases, people appeal when they believe some mistakes were made during the first trial. Mistakes might entail:
What happens during the Appeal process?
The court may reverse, modify, or uphold the whole or parts of the initial judgment. Reverse means that the first court’s decision has been deemed to be wrong, and is effectively cancelled or vacated. Affirm or uphold means that the original judgment was correct and should stay the same. Oftentimes a decision is upheld when the higher court concurs with the first court about the credibility of one witness over the other. Modify is when the court changes a part of the initial judgment.
How to start the appeals process
Once the family court makes a decision, you typically have 30 days to file a Notice of Appeal, which is essentially a document that contains the fundamental details of the case in question, including:
In the 30-day window, the appellant must present a copy to the respondent. Then, two copies of the Notice of Appeals to the court that entered the original judgment, along with proof of service, must be filed. Proof of service simply means that the respondent has been notified about the appeal. One of these copies will subsequently be forwarded to the court of appeals.
After filing the appeal, you have to get all the transcripts and other records of the case. If you were not deemed indigent, you have to pay for the transcripts. Once this has been accomplished, you can prepare a full record of the case. This record will be used to support the appellant brief which will explain the grounds for the appeal. The record will include the judgment being reviewed, the evidence leading to the improper judgment, and any particular opinions made by the judge regarding your case.
How I Manage the Appeals Process for Clients
One thing to keep in mind is that while an appeal might serve as a mechanism to seek redress for what may seem to be an incorrect or unfair ruling, it’s not cheap. Hiring a skilled attorney with experience in drafting appellate briefs is very expensive because it is very time consuming.
When I am writing a brief I first have to read the record. The record would include a transcript of the hearing relevant to the judgment seeking to be reversed. This could mean reading hundreds of pages depending on the length of the hearing or trial. The record also includes reading the different motions and pleadings filed throughout the course of the case. I then have to identify the legal grounds to support the appeal or reversal and find facts supporting the appeal in the record.
Once I have an idea of the legal argument I will be using in the brief, I then have to find case law or legal precedent to support my legal argument. Ideally, I will be using previous decisions made by the same court I am appealing to for binding precedent to support my argument. If I cannot find decisions by the appellate court, then I will look to other courts to support my argument in an effort to persuade. Conducting this type of research can take a considerable amount of time as well because it involves reading lengthy court opinions and searching through databases of thousands of cases.
Finally, once I’ve found the case law I intend to use, I then have to write the brief itself, which can range from 15 pages to 50 pages long. There are strict formatting requirements for the briefs, and the style must be optimized to be persuasive. Writing the brief can also take days or weeks. The appellate process doesn’t necessarily end with the appellate brief. There may be other motions involved and, of course, a response filed by the other side that may need to be addressed. Because of all of the steps involved in writing an appellate brief, appellate lawyers command large retainers for these services – thousands if not tens of thousands of dollars.
The Appeals Process is a great opportunity to try and get an unfavorable judgment in your family law case overturned, if you believe you got the short end of the stick. A general rule of thumb however, is to consult with a family law attorney to help you understand what your options are. For further assistance, kindly contact JPA Law Firm at (305) 979-2267.
The legal market is changing rapidly. With law firms seemingly on every corner here in Miami, there is an increasing demand for cheaper, faster, and more convenient legal services. Law firms have to adapt to this change in order to stay afloat. The result has been the introduction of the now popular unbundled legal services. Here is everything you need to know about them.
What Are Unbundled Legal Services?
Unbundled legal services is an arrangement in which the attorney and the client agree to limit the attorney’s involvement in the case. It is also referred to as limited scope representation or discrete task representation. For example, the client might decide to represent themselves in court while the attorney is tasked with preparing the necessary court documents or drafting written arguments.
How Do Unbundled Legal Services Help Clients?
Unbundled legal services involve breaking down tasks associated with a legal problem and then providing specific legal assistance to address part of the case. As a result, clients can choose the exact type of representation they want based on their preference or budget.
Limited Scope Agreement
It is absolutely important to sign an agreement explaining the limited scope representation of the attorney’s engagement. This agreement is referred to as a limited scope agreement. The attorney should provide checklists to the client educating him or her about the specific tasks that the firm will be addressing in the representation and which ones will be handled by the client.
The agreement should also explain how the services will be performed and how communication will be done. In most cases, these services are delivered through technology. Fixed fees are also preferred as opposed to billable hours. It is important to set these expectations in the agreement to avoid any misunderstandings, such as the client calling the office repeatedly when it has already been established that communication will be conducted via email.
There can be downsides to Unbundled Legal Services. For example, while documents can be prepared, the client that does not have a legal education and courtroom training will still be at a significant disadvantage in a courtroom against an attorney. Additionally and more importantly, oftentimes I meet with clients armed with the knowledge of limited representation and their own legal research that want to make decisions regarding legal strategy. These clients are unable to see how the specific task fits the larger picture in their litigation and can end up making short-sided costly decisions. If you are considering Unbundled Legal Services, consider paying for a legal consultation as well just to make sure that the task that you are wanting to pay for is an actual and sound legal move.
Although it has its own setbacks, limited scope representation is a great opportunity for clients to receive quality, affordable legal guidance, and for law firms to expand their market for legal services. If you have a pressing legal matter, JPA Law Firm is here to help. Contact us today at (305) 423-7065.
In Florida, child support is a must as long as there are minor children involved in the divorce. Child support pays for the essential needs of the children in the aftermath of a divorce, including food, water, shelter, and electricity, among other things. It is typically awarded to the parent that has primary custody of the children. If you are wondering how much you will have to pay for the upkeep of your children, here are a few factors Florida courts consider when determining child support payments.
The first step in determining child support payments is evaluating each parent’s income. Gross income includes wages and salaries, bonuses, overtime pay, commissions, income from corporations or partnerships, disability benefits, spousal support from another marriage, annuity payments, retirement, pension, social security benefits, rental income, etc. A monthly income may be imputed if one of the parents is unemployed or underemployed. After establishing the gross income of each parent, the court may allow for certain deductions such as:
2. Child’s standard of living before divorce
The courts also consider the type of life the child had prior to the divorce when determining child support payments. The idea is to ensure that the standard of living for the child is not significantly affected after the parents' separation.
3. The needs of the custodial parent
It is assumed that the parent with primary custody of the children will incur more expenses for their upbringing. If the other parent makes more money than the custodial parent, he or she may have to pay more to cover the necessary expenses.
4. Overnight visits
The number of overnight visits the child has with each parent will also come into play when determining child support payments. This is designed to account for the time each parent is financially responsible for the child. If, for instance, the non-custodial parent only sees the child once a week for an overnight stay, the court may deduce that the custodial parent bears most of the childcare responsibility and subsequently award them more child support payments.
How are child support payments calculated?
After arriving at the net income of both parents, the court factors in the number of children from the marriage. The court then uses the Child Support Guidelines to determine how much each parent should contribute from their net income. Adjustments can be made based on the number of overnight stays the child has with the non-custodial parent.
The most important consideration in any divorce is the children’s best interests. Regardless of the differences you may have with your ex-spouse, it is important to put everything aside when dealing with issues involving the kids. If you need a family law attorney to provide legal guidance in your case, feel free to contact us (305) 423-7065.
It is commonly assumed that men automatically get the short end of the stick in a divorce. For example, there are the often-told stories of men losing child custody and possession of the house while still having to pay for child and spousal support. But men have just as much right as women do to win in a divorce settlement. Here are some of the most common myths about men in divorce.
1. The father can lose child visitation rights for failure to pay for child support
There is a common misconception that the mother has the right to prevent the dad from visiting the child if he fails to pay for child support. This basically means that your visitation rights depend on your ability to meet the child support payments. But this is not true. In reality, child support and child visitation are treated as two separate issues by the court. The mother has to file a petition in court if she wants to block the father’s visitation rights.
2. The husband loses everything if he commits adultery
Marriage is considered an economic partnership in most jurisdictions. Adultery is treated as lousy conduct that is outside the influence of the partnership. In Florida, this type of misconduct will not result in an automatic forfeiture of his right to marital assets.
3. The husband reserves the right to deny the wife a divorce
In the past, a spouse had the right to deny the other partner a divorce by looking for ingenious ways to preserve the relationship. However, thanks to the introduction of “no-fault” divorce, everyone has the freedom to leave a marriage without assigning blame to anyone. You can stall the divorce process, but you cannot block it altogether.
4. The mother automatically gets child custody
For many years, the mother was favored when it came to awarding child custody; particularly in the case of younger children. However, this does not mean that the outcome is automatic. Nowadays if the mother has the child a majority of the time, the arrangement is achieved after an agreement between the couple. In Florida, the court does not automatically give child custody to the mother. If you believe that having custody of the children is in their best interests, you have the right to fight for it.
5. Men initiate divorce more often than women
While men are more likely to end a relationship outside of marriage, the opposite is true when it comes to divorce. In fact, statistics show that women initiate 70% of divorces. However, the petitioner in a divorce does not necessarily have an advantage during the proceedings. It always depends on the facts of the case. Plus, if the parties are able to reach an agreement and settle, then it doesn’t matter who in fact filed for divorce.
In the long run, the children’s best interests are the most important consideration in a divorce. Whatever your reasons are for getting a divorce, you need to protect your kids from the negative impact of your separation. For any legal advice or guidance in a family law case, JPA Law Firm is here for you. Contact us today at (305) 423-7065.
Legal representation can be expensive - particularly if you are involved in a case that may take time and several meetings with your lawyer, such as a contested divorce. For those with a tight budget or on a fixed income, it might be tempting to forgo legal representation and try to represent yourself.
This is a bad idea for two reasons. First, although you may save yourself quite a bit of money, this short-sighted move could cost your case. When you are involved in any legal issues, it is always best to have the help of a qualified attorney.
Second, you can easily manage your legal expenses by signing a retainer agreement with a lawyer so that they make a Limited Appearance. This allows you the freedom to specifically choose which lawyer will represent you during certain hearings or perhaps specifically for trial. Because this concept is not widely known, we have outlined everything you need to know about limited appearances in Florida family law cases.
What Is Limited Appearance?
When your attorney files a Notice of Limited Appearance, you are legally indicating that the lawyer you have representing you today in this particular case may not be the lawyer who represents you throughout the whole process. For example, the lawyer who represents you for family law mediation may not be the lawyer who represents you if your case goes to trial. By submitting this Notice, you allow yourself the freedom to shop around and choose the lawyer who best represents your needs and works within your budget. However, do make sure that the lawyer you choose fully understands your entire situation.
When different lawyers handle different aspects of your case, information can be easily forgotten. If you forget to share important information with your lawyer, this could mean you lose a case that you would have otherwise won. Always make sure to clearly communicate with your lawyer.
How Do You File a Notice of Limited Appearance in Florida?
When you have chosen a lawyer to represent you, your lawyer will have you read a Florida Family Law Notice of Limited Appearance. Upon your approval, your attorney will then bring this document and present it to the court at your first court date. This will notify the court that you plan for the attorney to represent you in that day’s matter only.
Let Us Help You!
If you are currently feeling the constraints of a tight budget and have family law issues, we can help. At JPA Law Firm, our expert attorneys can help you with your family law troubles while being kind to your wallet. Give us a call today at (305) 423-7065 or contact us online to discover what we can do.
If you are a parent getting divorced in Florida, you are probably wondering about your custody options. Although all states vary, there are really only two custody options in Florida. In this blog, we discuss your two options so you can make the best choice for your situation.
What Are Florida’s Custody Options?
For parents getting divorced in Florida, there are two options - sole parental responsibility and shared parental responsibility. This was previously commonly known as “sole custody” and “joint custody”. When the judge decides custody, this will determine the physical and legal custody of the child.
The physical custody of the child determines where the child will reside. Legal custody determines which parent is responsible for important decisions regarding the health and wellbeing of the child.
Sole Parental Responsibility (Sole Custody)
If you have been awarded sole parental responsibility, it means you are the only decision-maker for your child. Usually, you will be the parent whom the child will reside with. The other parent will not have decision-making rights in this situation. Therefore, you are the only one who can make important choices and legally choose how to care for and raise your child.
Although it might be tempting to go this route to avoid interacting with your former spouse, you want to give this some thought before you decide to ask for sole custody. As the sole custodian, you are responsible for signing all paperwork relating to your child. Whether it’s a permission slip for a field trip or a visit to the doctor, you will be the only person legally able to fill out these forms. It is also difficult to prove to the court why one parent should not have decision-making rights; so asking for this may be an expensive legal endeavor.
Shared Parental Responsibility (Joint Custody)
If you believe that your child will spend significant time with the other parent, and feel that you and the other parent can agree on most issues regarding your child, you probably want to ask for shared parental responsibility or joint custody. This allows each parent the freedom to appropriately care for the child when they are together.
When shared parental responsibility is awarded, it means both parents must approve all decisions related to the child.
Both parents will have to agree about things such as:
However, it also allows the freedom for each parent to act individually. For example, if a field trip consent form needs to be signed, either parent can do that. Similarly, either parent can sign consent forms for the child to receive medical treatment if necessary.
Do You Need Help with Your Florida Custody Case?
If you are a parent thinking of divorce or are currently in the middle of a divorce, you want a qualified attorney to help ensure you receive appropriate parental rights and visitation of your child. At JPA Law Firm, we are committed to making sure you get as much quality time with your child as possible. To find out how we can help, give us a call today at (305) 423-7065 or contact us online.
There are several reasons why it may be important to act fast if you are considering divorce. In 2018, it was very important to act fast because of the tax implications of alimony as a result of the new tax law. Now that it’s 2019, and the tax laws have already taken effect, people considering divorce may not think that it is necessary to rush into getting a divorce. While it is not a decision to take lightly, it may still be necessary to consider divorcing sooner rather than later if you are already living separately from your spouse and have ruled out reconciliation. Note, this blog is for those who are technically still married and physically separated or residing in different homes. This is not for those who have legally separated which is a different legal fiction than divorce. There might be reasons for couples to be legally separated rather than married. In Florida, where I practice however, there is not a “legally separated” status or designation recognized under Florida law. Here are the top 5 reasons why it may be important to file for divorce NOW if you are considering it:
#1. It May Help Your Case Strategically to File First and Fast and Hurt Your Case if You Delay.
Shady Spouses Hiding Assets
Every divorce case is different. Circumstances and facts are different in all cases. Therefore, wanting to file first and fast may depend on your circumstances. One reason to file first and fast is to avoid the situation in which your spouse may try to hide assets. In Miami and Broward counties, for example, there are administrative orders that prohibit transfers of property during the dissolution proceedings. These administrative orders or "status quo" orders go into effect upon service of the petition for divorce on the other spouse. This means that the parties cannot transfer property or act in any way that would affect the equitable distribution of marital assets or cause an undue financial burden on the other party. But because these administrative orders only go into effect when a party files for divorce anything that occurs before the filing of the petition would not be subject to sanctions under the administrative orders. There are still remedies available for the dissipation of marital assets or the improper transfers of property or marital assets, however, tracking the transfers may become more and more difficult to track as time pasts.
Lying About Domestic Violence to Affect Child Custody
Domestic Violence is obviously a very serious issue. It is not one that I take lightly or consider frivolous. However, I recently successfully defended a husband who was falsely accused of domestic violence coincidently after he told his wife that he would be filing for divorce. I was able to show that the wife lacked credibility and that her claim did not rise to the level of requiring a restraining order, however, it was not easy. Given the seriousness of her allegations, before the ruling, the judge asked if I would consider extending the temporary restraining order to proceed through divorce proceedings. The divorce proceedings had not yet been filed by either party. I responded to the judge with an emphatic "HELL NO YOUR HONOR" (in not so colorful language of course and in a respectful and professional way). I was confident that there was not enough evidence to support a restraining order and I was right. The judge denied her petition for a restraining order.
The reason I denied the judge’s suggestion was because entering a divorce proceeding with a restraining order would have put my client at a significant disadvantage for purposes of awarding child visitation. Although the family court judge is supposed to be impartial, they are still human. A restraining order with allegations of violence would have prejudiced my client in front of the divorce judge and would have potentially hurt my client’s case for equal or more time-sharing. So if you are considering getting divorced and believe that your spouse is capable of treacherous behavior for strategic advantage, consider filing sooner rather than later.
#2. Children Need to Have a Stable and Regular Visitation Schedule
If the parents are disputing time-sharing, a court needs to decide. Disputes regarding when the children are to spend time with each parent can affect the children emotionally. It is in the children's best interest not to see their parents arguing. Additionally, the parents and children need to have a stable and regular visitation schedule. They should be allowed to spend significant time with both parents on a regular basis. However, if the parents are unable to agree a court needs to decide for them sooner rather later to promote a stable environment for the children.
#3. Child Support Needs to Be Established
On a related note, time-sharing for each parent needs to be established because once a time-sharing schedule is determined, then child support is calculated. However, it is in everyone's best interest to establish child support sooner rather than later because the parent paying child support needs to start paying as soon as possible. When determining child support for a new divorce action, courts will go back to the date of separation to calculate retroactive child support owed to the other parent. The retroactive child support obligation is then added to the ongoing child support obligation. Florida courts can go back 2 years for retroactive child support. Therefore, a parent could find themselves with a huge unexpected child support bill before they even start paying on their regular child support bill.
It is also important for the parent who is expecting to receive child support payments for child support to be established. Given the contentious nature of divorce proceedings, sometimes parents can act in a spiteful manner towards the other parent. Some parents will often put undue financial pressure on the other parent with a complete disregard for how that financial pressure will affect their children. Therefore, a parent who is the primary caretaker should file for divorce and seek relief, even on a temporary basis to ensure that the other parent is not putting undue pressure on them and their children for purposes of getting an advantage during the divorce proceedings.
If you expect to receive alimony from your former spouse it is in your interest to seek alimony sooner rather than later. Particularly if you’ve been a stay at home parent. In order for a court to award alimony to a spouse, the spouse seeking support has to establish two things: 1) the need for spousal support, and 2) that the spouse that would be paying alimony has the ability to pay. There are five kinds of alimony in Florida. Temporary, Bridge-the-gap, Rehabilitative, Durational, and Permanent. To receive temporary, bridge-the-gap, and/or rehabilitative, the facts have to demonstrate a reliance on the financially more able spouse to support and justify the award. For a discussion on the different types of alimony subscribe to our website or come back to the blog. If a spouse waits too long after separating to file for divorce and ask for alimony, they may not be granted the award. If the facts demonstrate that the spouse in need has been able to live independently while separated, it may hurt their case for an award of temporary, bridge-the-gap, or rehabilitative alimony.
Additionally, the obligor spouse may suddenly experience job loss or business troubles if they are anticipating a divorce. This would, therefore, affect their ability to pay. Oftentimes, sudden financial difficulties occur in anticipation for divorce in order to avoid a support award to the other spouse. While there are a number of factors a court will consider before entering an alimony award, it is best to act quickly if you are the spouse in need to make sure that you are able to maintain the standard of living you were accustomed to while married.
#5. Peace of Mind
Finally, the last reason why you should file for divorce sooner rather than later is for your own peace of mind. Deciding to divorce your spouse should not be made hastily. However, if you’ve thought about it and sought advice and finally decided that there is not a possibility for reconciling then you should file. Especially if you have separated from your spouse. Uncertainty breeds and fuels anxiety. Instead of agonizing over speculating what you will receive in alimony, child support, or how the assets will be distributed, start looking for a divorce attorney that can help you. The sooner you are able to reach a final judgment the quicker you can move on to the next chapter in your life. The better it is for your children as well who also need finality. Once there is a final judgment you will finally have peace of mind.
If you are separated and considering divorce, it’s not a bad idea to see a counselor if there is any chance of reconciling. However, if there is not then you should speak to an attorney right away. If divorce is imminent but you think that counseling may help for the benefit of the family there are co-parenting services available through the courts that can help. You don’t have to seek counseling prior to filing for divorce.
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?
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
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.