Boca Raton Divorce Lawyer Blog

In today's economy, we see more and more people struggling to find employment. As a result, people are searching over a broader market area then they would normally be looking at, and as a result, more employment opportunities become available to individuals in other states.

This brings up the ever difficult decision a trial judge must face when a parent seeks to relocate with the minor children to another state, or to a new residence that is a substantial distance from their current residence.

Most frequently this situation will arise due to new employment opportunities that may be available to one of the parents.

Relocation of minor children is governed by Florida Statute 61.13001. The provisions of this statute will be applicable whenever a parent wishes to relocate from their current residence, and if the new residence is more than 50 miles from the current residence.

The consequences of not complying with the provisions of the statute could lead to some rather unpleasant consequences for the relocating parent, so it is extremely important to have a clear understanding of all of the provisions of that statute.

There are not only important factual considerations for the court to consider, but procedural ones as well. The petition that is filed, which seeks the ultimate grant of permission to relocate, must contain specific information, including the address of the proposed new residence, the new telephone number, and all the appropriate information regarding the new employment offer. There must be specific warnings to the other parent, in bold type, of the consequences they could suffer by not timely responding to the petition.

If anyone has had any prior experience with the judicial system, the have probably discovered that the judges are busy, and that it takes an extended amount of time to resolve issues that are pending before the courts.

What happens then, if an employment opportunity must be acted on promptly and access to the courts would not be swift? There is a remedy provided under the statute for this very situation.

Under Florida law, if you file a motion seeking expedited relief, for permission to relocate on a temporary basis while your petition is pending, you are entitled to a hearing on that matter within thirty (30) days of filing that request. What I do as a matter of course, is to file that motion right along with the petition, and obtain that hearing very quickly.

These types of cases require close attention to all the details, since the court is guided as to what will be in the best interests of the children. The proper presentation of the relevant evidence and documentation to support the claim for relocation can only increase the likelihood of success in these proceedings.

In 2008, the Florida legislature made substantial changes to the law in reference to minor children. The primary and most significant changes made by the 2008 amendments to section 61.13, Florida Statutes, was the abolishment of the terminology of "primary residential parent."
The effective date of the amendments were on October 1, 2008, and the changes were to have prospective application only. The changes could not be utilized to effectuate any modifications to agreements that were previously entered into by individuals prior to October 1, 2008. See the case of Hahn v. Hahn, (Fla. 4th DCA 2010).

The Hahn case is an interesting case to read. It clarifies many points of law that have arisen under the 2008 amendments to section 61.13. Although the designation of "primary residential parent" has been removed from the statute, the trial court is still required to consider the best interests of the child if called upon to create a parenting plan. The trial court must still "determine all matters relating to parenting and timesharing of each minor child of the parties in accordance with the best interests of the child. Section 61.13(2)(c)1., Florida Statute (2008)(amended October 1, 2008).

The Hahn case involved modification proceedings that were filed two years after the final judgment was entered, and before the effective date of the new statute. It was error on the part of the trial judge to apply retroactively the provisions of the new statute.

Florida, and in particular south Florida, is suffering from the economic downturn experienced by the rest of the country. Foreclosures are at an all time high in Palm Beach and Broward County; families are losing their homes at an unprecedented pace.

This situation makes relocation a very real possibility for many families after divorce. Single parents are looking for better opportunities for themselves as well as for their children. As a result, trial judges are dealing more frequently with the very difficult issue of relocation. Relocation cases are extremely difficult since most often times there is little to negotiate and there is no room to compromise. One parent wants to go, while the other would prefer that his or her children remain in close proximity.

Relocation cases must be dealt with when the issue arises; it is not appropriate for the court to consider a relocation case today when the anticipated move will occur sometime in the future. See Sylvester v. Sylvester, 992 So.2d 296 (Fla 1st DCA 2008).

The law on this issue is supported by substantial case law. When a cause involving child custody is presented to the trial court, "the trial court is required to make a final determination on that issue at that time." Martinez v. Martinez, 573 So. 2d 37 (Fla. 1st DCA 1990).

The court in the Sylvester case made it very clear that it would not be appropriate for a trial court to look into its crystal ball and determine whether relocation would be in the best interest of the child at some time in the future. The proper cause of action is to determine whether relocation is presently appropriate and consider future relocation based on the circumstances existing at that time.

Obviously, the courts won't hesitate to enter any orders when necessary to protect minor children from harm. This would include orders for supervised visitation against a parent if the circumstances warranted this type of relief.

In the divorce proceedings between N.W. and M.W., 41 So.3d 383 (Fla. 2nd DCA 2010), the mother alleged that the father was sexually abusing the parties' daughter. As a result of those allegations, the father was restricted to supervised visits with his daughter. The father subsequently moved for unsupervised visits, and the mother moved to admit the child's hearsay testimony regarding the sexual abuse pursuant to section 90.803(23), Florida Statutes (2009). The court denied the mother's request, and re-instated the father's unsupervised visitation.

The mother filed a timely appeal, and the appellate court reinstated the order for supervised visitation. The court said that the trial court had applied the incorrect standard of law.

The proper standard for admitting hearsay statements of children was succinctly stated in State v. Townsend, 635 So.2d 949, 954 (Fla. 1994). The trial court has responsibility in ensuring that child hearsay statements satisfy a strict standard of reliability before admitting them as evidence. The trial court must make findings that satisfy two criteria:" (1) the source of the information through which the statement was reported must indicate trustworthiness; and (2) the time, content, and circumstances of the statement must reflect that the statement provides sufficient safeguards of reliability."

As the Townsend case makes clear, the focus on these types of cases is on the person to whom the statement was made by the child and the manner in which the statement was made.

The appellate court also noted that the mother sought to introduce statements made by the child to the mother, the grandmother, a therapist, and a family friend. The trial court's order was reversed because, as the appellate court found, the trial court made no findings with regard to any of these sources and also failed to address the individual statements and circumstances under which they were made.

The trial court neglected to follow the mandates of the Townsend case, as established by the Supreme Court of Florida.

If you or any of your family members require expertise in the admissability of hearsay evidence in order to protect a child from harm, you can contact me directly by clicking on my name, Alan R. Burton, Esq.

Do the odds of having heart disease increase if your parents have a history of heart disease in their family?

Do your odds of having cancer increase if there is a history of cancer in the family?

The answer to these questions is yes, the risks do increase. In a similar manner, children whose parents have divorced are more likely to divorce than those children who come from intact marriages, where the parents are committed to each other.

A recent article written by Robert J. Hughes, Jr., Professor of Human Development, at the University of Illinois, Urbana-Champaign campus, has compiled the data to support this point. See the article entitled "Are Children of Divorce Doomed to Repeat their Parents' Mistakes?"

The essence of the study is actually quite logical. Children learn from what they see. If they observe parents who are commited to working through conflict, they will be more likely to follow the skills that they have observed and learned for themselves. Unfortunately, the opposite holds true as well. If they observe lack of commitment, they will be more inclined to abandon their own personal relationships as they mature.

Raising strong, healthy children is a responsibility we all share as parents. The responsibility should not be taken lightly.

Under Florida law, the rights of grandparents are extremely limited. In fact, recent cases have indicated that grandparents do not have the right to visit with their grandchildren over the objection of the child's parents. Any law to the contrary has been declared unconstitutional.

In 2004, the Supreme Court of Florida made it very clear that any law which afforded grandparents the right to visit with their grandchildren was unconstitutional. A full explanation of their analysis can be found in the case of Sullivan v. Sapp, 866 So.2d 28 (Fla. 2004).

The Supreme Court has consistently stated that based upon the privacy provision of the Florida Constitution, the state may not intrude upon the parents' fundamental right to raise their children except in cases where the child is threatened with harm.

Prior to this decision, the Supreme Court also dealt with grandparent visitation rights in the case of Von Eiff v. Azicri, 720 So.2d 510 (Fla. 1998). The court stated "neither the legislature nor the courts may properly intervene in parental decision making absent significant harm to the child threatened by or resulting from those decisions."

Skype is rapidly becoming the tool of choice for many family law judges throughout south Florida, Boca Raton and Fort Lauderdale.

Relocation cases involving minor children are not uncommon in South Florida. Relocation can occur for a multitude of reasons, but most frequently relocation with minor children occurs due to job transfers and other employment related issues.

Florida Statue 61.13001 deals with relocation of children. The court is required to consider the statutory factors listed in the statute when deciding if relocation would be in the best interest of the minor child or children.

One of the statutory factors deals with substitute arrangements for continuing contact. Section 7 (c) of the statute reads as follows:

(c) The feasibility of preserving the relationship between the nonrelocating parent or other person and the child through substitute arrangements that take into consideration the logistics of contact, access, and time-sharing, as well as the financial circumstances of the parties; whether those factors are sufficient to foster a continuing meaningful relationship between the child and the nonrelocating parent or other person; and the likelihood of compliance with the substitute arrangements by the relocating parent or other person once he or she is out of the jurisdiction of the court.

Boca Raton Divorce lawyer Alan R. Burton frequently deals with this issue with relocation cases, and has found that many judges have readily adopted and embraced Skype as part of their rulings and orders.

Skype, for those of you who are not familiar with it, is an on line program that provides for video communication between parties. All you need is a computer, a webcam, and the Skype software downloaded on your computer. You register and are good to go.

Skype is just one example as to how technological advances can assist your clients in their quest for relocation. Although it is not the same as being physically present with your children, Skype does offers a viable and significant option.

Recent legislation in Florida has changed the way we now provide for minor children in a divorce case. The manner we have previously been accustomed with in dealing with the issue of custody has in fact been abolished in Florida.

The new parenting and time sharing provisions of Florida law are found in Chapter 61.13. All of the old nomenclature and terminology regarding "custody" of minor children has been abolished. The reason for this is really quite logical. Emotions run high in a divorce case, and the minor children are generally the focal point of the dissolution of marriage proceedings. If one parent felt that they could come out of the litigation with the title of "custodian", it was often times viewed as some type of victory. This resulted in unnecessary litigation, expense, and emotional toll upon the parties, as well as the children.

The new legislation removes the issue of "custody" from the battleground. There is no longer a need for the mother or father to fight over obtaining the prize for becoming the "custodian" of the minor children. Now both parents simply enter into a Time Sharing Plan, whereby certain days of the week, as well as various responsibilities of each parent, are spelled out in a written contract or plan.

A Parenting Plan can be very detailed and elaborate as the particular situation dictates, or it can be very general. It is up to the parents to create their own plan, based upon their individual and unique circumstances. However, a Parenting Plan, in order to be approved by the Court, must, at a minimum, contain certain provisions. A Plan must describe in detail how the parents will share and be responsible for the daily tasks associated with the upbringing of the child; the time-sharing schedule arrangements that specify the time that the minor child will spend with each parent; a designation of who will be responsible for any and all forms of health care, school-related matters including the address to be used for school-boundary determination and registration, and other activities; and the methods and technologies that the parents will use to communicate with the child.

It is the public policy of the state of Florida that each minor child has frequent and continuing contact with both parents after the parents separate or once the marriage of the parties is dissolved. By abolishing the old manner of dealing with minor children and doing away with the "custody" determination , the process should become a less costly one for the parties, both on a financial as well as on an emotional level.