Posted by Nydia Streets of Streets Law in Florida Child Custody
When a parent relocates before a court approves his or her petition to do so, is the parent entitled to modification of the timesharing schedule in the event the petition is ultimately denied? This question was answered in the case Hull v. Hull, 5D18-1517 (Fla. 5th DCA May 31, 2019) in which the former husband sought to relocate to Oregon with the parties’ minor children.
The parties were previously divorced and by the terms of their parenting plan, the former wife had majority timesharing with the children. The former husband filed a petition for relocation three years after the divorce was finalized, seeking to move to Oregon with the parties’ minor children because he felt more stability and a “wholesome” living would be possible for the children there.
By the time the case went to trial, the former husband had already relocated to Oregon without the children, and without waiting for the court to grant permission for the move. After considering the factors listed in Florida Statute 61.13001, the court denied the former husband’s petition for relocation and declined to modify the parenting plan to account for the former husband’s relocation. The former husband appealed, arguing it was error for the trial court to refuse to modify the parenting plan to make it geographically viable based on his relocation.
The appellate court disagreed with the former husband, holding “It is not the function of this court to rewrite section 61.13001 to provide that a parent who is denied relocation because the trial court finds that it is not in the children's best interest but who voluntarily relocates anyway is still entitled under the statute to have the trial court change the previously agreed upon time-sharing between the parents and their children.5 The purpose of the relocation statute requiring the trial court to determine whether the parent's relocation is in the child or children's best interest becomes irrelevant if the court must nevertheless modify time-sharing when the petition is denied but the parent relocates anyway. While the trial court pragmatically believed that a long distance parenting plan between the parties would need to be adopted, it correctly recognized in its final judgment that, because it denied Former Husband's petition to relocate, there was no mechanism under section 61.13001 to allow it to grant such relief. Having chosen to relocate prior to trial and without court permission, Former Husband essentially did so at his own peril as to its effect on his ability to easily exercise his agreed-upon time-sharing with the children.”
If you are thinking about relocating more than 50 miles from your current residence, it is important that you consult with a Miami child custody lawyer prior to doing so. A consultation is designed to help you understand the procedure for relocating and your best claims for doing so.