Relocation: a moveable feast?

• Author: Valdespino, Jacqueline M.
• Position: Family Law

We live in an increasingly mobile society in which, by the mid-1990s, one in five adults changed residences each year. (1) Additionally, the realities of the current labor market require that adults be able and willing to travel long distances to secure employment. (2) When a parent decides to move out of state or far from the other parent, a previously established timesharing arrangement often becomes untenable. (3) The party seeking to relocate must either negotiate with the other parent to alter the timesharing agreement or seek a remedy from the courts. (4)

* 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 noncustodial parent (usually the father) can move without the children, without restriction. In both situations, parents rarely went to court for relocation disputes. (5)

* Historical Context: Post 1980s --With equal or close to equal timesharing and the notion of shared parenting, which became more common in the 1980s, relocation disputes increased. Fathers were less willing to become marginal parents, only seeing their children for two to three weeks in the summer and on holidays. While noncustodial fathers could still move at whim, usually for better jobs or new relationships, some noncustodial fathers tried to prevent custodial mothers from moving because it might interfere with their parenting rights. This led to a rise in relocation-related disputes and concomitantly a rise in rules seeking to govern those disputes. (6) Accordingly, the rise in relocation-related disputes led to a rise in the literature concerning the psychological effects on the children of parental relocation. (7) Today, family law practitioners consider relocation cases their most contentious. (8)

The American Law Institute (ALI) addresses relocation, (9) explaining that the custodial "parent is allowed to relocate without a specific showing of the benefits to the child." The ALI further advances a highly permissive standard for judging contested relocation petitions:

[I]f a parent has been exercising a clear majority of custodial responsibility and the move is in good faith, no further analysis is required. The court is not permitted to prevent a relocation simply because it determines that such a relocation would not, on balance, be best for the child. (10)

The ALI's relocation model operates with the de facto presumption that the family courts can serve the welfare of the children in relocation matters by maximizing the wellbeing of their custodians. (11)

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. (12) However, the Third District adopted a policy favoring relocation. (13) 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. (14)

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." (15) 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 --well-being, rather than from a vindictive desire to interfere with the visitation rights of the other parent, the change in residence should ordinarily be approved. (16)

After a flurry of relocation cases in the appellate courts, the Florida Supreme Court addressed relocation again in Russenberger, (17) The court stated:

We reaffirm the policy adopted in Hill and reiterate here the general rule adopted therein that a request for relocation should be favored as long as the request is made in good faith under the criteria described by Judge Schwartz that were quoted with approval in Mize. In other words, relocation should ordinarily be approved so long as the custodial parent desires to move for a well-intentioned reason and a founded belief that relocation is best for the well-being of that parent and the children, rather than from a vindictive desire to interfere with the visitation rights of the other parent. (18)

* F.S. [section]61.13--On June 1, 1997, the legislature enacted F.S. [section]61.13.(2)(d). This statute stated in pertinent part: "No presumption shall arise in favor of or against a request to relocate when a primary residential parent seeks to move the child and the move will materially affect the current schedule of contact and access with the secondary residential parent."

The statute also delineated certain factors that courts must consider before approving relocation. The statute and Mize together held that judges should consider and weigh factors, such as 1) whether the move would be likely to improve the general quality of life for both the primary residential spouse and the children; 2) whether the motive for seeking the move is for the express purpose of defeating visitation; 3) whether the custodial parent, once out of the jurisdiction, will be likely to comply with any substitute visitation arrangements; 4) whether the substitute visitation will be adequate to foster a continuing meaningful relationship between the child or children and the noncustodial parent; 5) whether the cost of transportation is financially affordable by one or both of the parents; and 6) whether the move is in the best interests of the child.

Additionally, in 2005, the Florida Supreme Court approved the "substantial change" test. (19) The party seeking modification of the custody arrangement must show "(1) that the circumstances have substantially and materially changed since the original custody determination, and (2) that the child's best interests justify changing custody." (20) All requests for modification, whether adopted by a court after agreement or those established during a hearing for custody, were subject to the "substantial change" test.

The New Statute: F.S. [section]61.13001

* Florida Relocation Statute 2006

--F.S. [section]61.13001, titled "Parental Relocation with a Child" replaced [section]61.13(2)(d) on October 1, 2006. A primary residential parent, including domestic violence victims, must follow the requirements of [section]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 clear the procedure for relocating with a child. The purposes 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, [section]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. (21) 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.

The...