AFTER DIVORCE: CAN I MOVE AWAY WITH MY KIDS?
BY JOEL H. FELDMAN

You are divorced. You have minor children. Your ex-spouse exercises his visitation rights, yet you want the right to move away from the area with the children. Can you?

Parents often find themselves fighting about restrictions on relocation with minor children. Therefore, both parents must consider the likelihood of relocation when they are litigating their divorce case.

In most cases, in Florida, parents of minor children are awarded shared parental responsibility, with one parent designated as the primary residential parent. That parent generally has more say about routine matters, and the children reside with him or her more of the time.

What if the primary residential parent is offered a better job in another state? What if the primary residential parent plans to remarry, and wants to move with the children and new spouse to another state? What if the primary residential parent is suffering economic or physical hardship and needs to move to another state to have the support of family and friends? And what if the secondary residential parent answers, "I don’t care. You’re not taking my children away from me."

Florida law evaluates claims for relocation on a variety of factors. Florida Statute 61.13(2)(d) sets forth the typical factors that a Court must consider in deciding whether to allow a parent to move away with the children. It also states that there is be no legal presumption either in favor of or against relocations. Each case must be determined on its own merits.

The most significant of the factors to be considered are: (a) whether the move will improve the quality of life for the parent and the children, (b) what alternative visitation arrangements can be made and how additional costs such as airfare will be handled, (c) whether the secondary residential parent has been exercising his or her visitation, (d) whether meaningful contact between the children and the secondary residential parent can be continued even if the move is allowed, and, overriding all else, (e) whether the move is in the best interests of the children.

It is not enough for the parent seeking to relocate with the children to allege that the children’s quality of life will be improved. The parent seeking to relocate must prove the factors mentioned above.

A parent seeking to relocate needs to check out the school system in which the children will be enrolled. The parent needs to obtain statistical information on the quality of the school system and needs to prove to the Court why that school system is better for the children. If the parent has a job offer in another state, that parent needs to show the Court why the new job is better. The parent should have family members testify that they will be there to provide assistance. The parent also should have a visitation plan to offer the Court showing that the other parent’s contact with the children can be maintained.

A few months ago, the appellate court for Broward and Palm Beach Counties issued a decision, permitting a trial judge, within the divorce case, to determine rights of relocation, even if neither party asked the Court to do so. Parties seeking a divorce had better consider the likelihood that he or she may wish to relocate in the future, and be prepared to offer testimony from both parents, the children (depending upon their ages), psychologists, schoolteachers, and family members. In the event of a relocation dispute, the services of an experienced Florida family law attorney are critical.

Joel H. Feldman has been practicing law in Palm Beach County for 24 years, emphasizing divorce law. He is a partner in the law firm of Feldman & Schneiderman, P.L., is rated a "Preeminent Family Law Attorney" by the Martindale-Hubbell attorney rating service, has been honored by the Palm Beach County Legal Aid Society and has been involved in numerous civic activities in Palm Beach County. He is a graduate of Georgetown University and Duke University School of Law and can be reached at 401 Camino Gardens Boulevard, Boca Raton, Florida 33432, (561) 392-4400 or at jfeldman@feldmanlawoffice.com.

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