Posted by Nydia Streets of Streets Law in Florida Child Custody

Can I move with my children to a different county or state? This is a frequently asked question when parents separate in Florida. The answer depends on whether the parents are married, and whether court proceedings for custody or in progress or have already taken place. Relocation of children is governed by Florida Statute 61.13001.

In the case Lojares v. Silva, 1D22-981 (Fla. 1st DCA January 4, 2023), the parties were not married, and when they ended their relationship, the father moved in with his parents and the mother eventually moved to a different county with the children to accept a better paying job. After the mother moved, the father filed a petition to establish paternity. The court initially ordered the children to remain in the county to which the mother moved, but the father filed a motion to have them attend school in the county in which he resided. The court granted this motion and the father became the primary residential parent. A trial proceeded on the paternity petition, and the court warned the mother at the beginning of the hearing that her moving back to the county in which the children originally resided was “fundamental” to the outcome of her timesharing request.

The mother testified that she was unable to move back because her previous job position was filled and no other positions were available. The father testified the mother moved with the children without consulting him and told him “at the last minute”. The court entered a final judgment of paternity citing the mother’s failure to consult with the father or obtain a court order to move. The father was granted majority timesharing because the court deemed wrong the mother’s relocation before the filing of the petition. The mother appealed.

The appellate court reversed, holding “The trial court stated that the Mother’s move was ‘wrong’ because, contrary to the Father’s own testimony, she made the move ‘without consulting with him, without letting him know. He found out after they were there.’ The trial court reiterated ‘that was just wrong,’ and while paternity had not been established, it was still ‘wrong to unilaterally pull up stakes and move with those children without seeking a court order first or at least without consulting with the other parent.’ But the Mother did nothing wrong under the law, nor did she violate any legal obligation to the unmarried Father. Section 742.031(2), Florida Statutes, states that ‘the mother shall be presumed to have all of the time-sharing and sole parental responsibility’ prior to a paternity and timesharing determination. Here, the trial court inverted this statutory presumption.”

The appellate court concluded “The trial court acknowledged that section 61.13001 did not apply to the Mother’s move, but then continued to impose the statutory requirement to seek leave of the court or to consult the Father while evaluating section 61.13(3) best interest factors. At the time of the Mother’s move, paternity had not been established, and thus she was under no legal requirement to seek a court order or consult the Father.”

Schedule your meeting with a Miami family law attorney to understand how the law may apply to the facts of your case.