RELOCATION: A MOVEABLE FEAST?
We live in an increasingly mobile society in which, by the mid-1900s, one in five adults changed residences each year. Additionally, the realities of the current labor market require that adults be able and willing to travel long distances to secure employment. When a parent decides to move out of state or far from the other parent, a previously established timesharing arrangement often becomes untenable. The party seeking to relocate must either negotiate with the other parent to alter the timesharing agreement or seek a remedy from the courts.
Historical Context: Prior to the 1980s – Historically, relocation cases did not pose the dilemma they do today. Prior to 1980, when California became the first state to authorize joint custody, there were typically two scenarios: custodial parent (usually the mother) can move with children, usually without restriction; and non-custodial parent (usually the father) can move without the children, without restriction. In both situations, parents rarely went to court for relocation disputes.
RELOCATION IN FLORIDA PRIOR TO 2006
Florida Caselaw – Florida initially weighed in on the relocation issue in 1993 in Mize v. Mize, 621 So. 2d 417 (Fla. 1993). In Mize, the court resolved an ongoing conflict in the district courts as to the standard to be applied by a trial court when a custodial parent requests to relocate with the minor children. Prior to Mize, the district courts of appeal appeared to approach the issue in three different ways. The Fifth District adopted a policy strictly disfavoring relocation. However, the Third District adopted a policy favoring relocation. Finally, somewhere in the middle of these two approaches was the track taken by the Fourth District, which adopted certain considerations to guide the discretion of the trial judge.
The Mize court resolved the conflict by adopting the Third District’s approach in Hill v. Hill, 548 So. 2d 705 (Fla. 3d DCA 1989), including Judge Schwartz’s special concurrence. The Florida Supreme Court later explained in Russenberger v. Russenberger, 669 So. 2d 1044 (Fla. 1996), that its “basic intent” in Mize “was to adopt a policy allowing a good faith relocation by a custodial parent, although stopping short of adopting a per se rule”. Mize, like the ALI principles, created an implied presumption in favor of relocation, so long as the move was not motivated by an improper desire to interfere with the other parent’s parental rights:
[S]o long as the parent who has been granted the primary custody of the child desires to move for a well-intentioned reason and founded belief that the relocation is best for that parent’s – and, it follows, the child’s – wellbeing, rather than from a vindictive desire to interfere with the visitation rights of the other parent, the change in residence should ordinarily be approved.
THE NEW STATUTE: F.S. §61.13001
Florida Relocation Statute 2006 – F.S. §61.13001, titled “Parental Relocation with a Child” replaced §61.13(2)(d) on October 1, 2006. A primary residential parent, including domestic violence victims, must follow requirements of §61.13001 if they intend to relocate with their children.
The 2006 statute on parental relocation was very detailed. Outfitted with its own list of definitions, the 2006 statute made it clear the procedure for relocating with a child. The purpose delineated in Ch. 61 included the promotion of “amicable settlement of disputes that arise between parties to a marriage and [t]o mitigate the potential harm to the spouses and their children caused by the process of legal dissolution of marriage.”
In 2006, §61.13001 defined the primary residential parent of the child as “the person seeking to relocate with a child,” absent a court order or an agreement designating one parent as the primary residential parent. Under this section, ‘change of residential address’ means “the relocation of a child to a principal residence more than 50 miles away from his or her principal place of residence at the time of the entry of the last order establishing custody.” Relocation is defined in this section as a change of residence for 60 consecutive days.
FLORIDA CASELAW: 2009 TO PRESENT
Parent vs. Child Relocation – In Krift v. Obenour, 152 So. 3d 645 (Fla. 4th DCA 2014), the relocation statute was inapplicable, when the order provided for change of child’s residence upon reaching kindergarten age. Neither parent sought to move from his or her principal place of residence, and, under the ordered parenting plan, neither parent would be changing his or her residence. The parenting plan in the amended final judgement does not involve “relocation,” as defined in §61.13001(e), but rather orders that the father become the primary residential parent once the child begins kindergarten.
In Rolison v. Rolison, 144 So. 3d 610 (Fla. 1st DCA 2014), the First District Court of Appeal held that the plan language of the relocation statute applies only when a parent’s principal place of residence changes “at the time of last order establishing or modifying time-sharing” (which is not applicable here) or “at the time of filing the pending action.” The mother’s location was already in Georgia when the father filed the pending action; as such, in accordance with §61.13001, she did not have to seek permission from the father or the court to move there.
INTERNATIONAL RELOCATION
Each year, our world gets smaller. Ease of travel and Internet have opened doors that were not accessible 20 years ago. As family practitioners, we face issues we may not have thought we would face. International law issues are the new reality in everyone’s practice. Attorneys must ramp up their knowledge on how international law issues relate to their clients, specifically issues related to relocation, parental child abduction, and asset distribution.
In a divorce case in which international issues exist, the issue of relocation is generally divided into two parts. Either one parent fears that the other parent, in violation of a court order, will permanently take the children out of the U.S., never to return, or one parent wishes to relocate the children out of the country. The latter is similar to the issue of relocation in a domestic case, with the factor for consideration being the best interest for the children. However, the issue of a parent’s fear of relocation by abduction is a legitimate fear in many international cases, and should at all times be considered by the lawyer.
International Travel with a Child – Anytime a child is traveling internationally, whether short or long-term, particularly when a parent has ties to another country, child abduction is a concern. There are three preventable steps that can be taken to help address the non-traveling parent’s concerns. First, the minor children’s passports should be addressed. If passports exist, they should be located and secured. However, the other parent could still apply for new or replacement passports. To help address that potential issue, the concerned parent can register the children’s passports with the Children’s Passport Issuance Alert Program (CPIAP) adding the passports of child U.S. citizens in the State Department’s Passport Lookout System. Hence, if a passport is submitted, the department will alert the parent and allows for advance warning of possible plans for international travel with a child.
Second, the parties can enter into a clearly and carefully drafted written agreement outlining the terms of travel. There are several forms or templates that can be the starting point of such an agreement to ensure the major concerns are addressed.
Third, the non-traveling parent can also request that the traveling parent, prior to departure, post a monetary bond sufficient to cover the non-traveling parents’ anticipated legal fees and costs in the event the child is wrongfully removed or retained in the foreign country.
International Child Abduction – If a child has been wrongfully removed or retained outside the U.S., immediate action is required. The Hague Convention on the Civil Aspects of International Child Abduction provides a mechanism of return for parents whose children are wrongfully removed or retained in a treaty partner country; however, the convention has a hard deadline to take action for the left behind parent.
International Child Relocation – The requirements of F.S. §61.13001 apply when a parent is requesting international relocation with a minor child. These factors, however, are often insufficient to address the complex and unique concerns that inevitably arise in international relocation cases.
The most obvious problem posed by an international move is the increased physical distance between the left behind parent and the child. Difficulties inherent in maintaining a close relationship over long distances are not unique to international moves. Concerns of distance and time zones frequently arise in interstate relocations; state statutes regarding relocations generally address the problem of increased physical distance. Still, the problem is often more severe in international cases. International travel tends to be particularly expensive, burdensome, and time consuming, and there may be logistical concerns regarding the party’s ability to leave a country or re-enter the U.S. Particularly if the parties lack substantial financial resources, it may be difficult or impossible to arrange frequent visitation following an international move.
CONCLUSION
Relocation cases are fact intensive. All relevant facts must be presented to the court in a clear manner. Prepare your case carefully using all available resources including demonstrative evidence. Despite the existence of statutes and caselaw, no bright-line rules allow either party to predict with any degree of certainty the end result. With thorough preparation, you can present a viable, persuasive case on behalf of your client.
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