Can My ex-spouse Move With the Kids?

Welcome to the Ayo & Iken legal roundtable. We tackle the toughest legal issues with down-to-earth commentary you can use from our expert panel of attorneys from Tampa Bay to Orlando.

In this edition, we deal with the often contentious issue of what do when a spouse is seeking to re-locate. It can be one of the more tense issues in family law as it often involves children and the possibility of them being taken long distances.

As you will see, there are steps that can be taken to ensure that your spouse or ex-spouse does not relocate with the children extraordinary distances. Also, our attorneys discuss what to do if someone re-locates without notice or violates a court order banning a move.

Below is the roundtable session with our attorneys discussing relocation. We talked to New Port Richey Attorneys Bruce Przepis and Jeremy Simons; Orlando Attorneys Jason Ponder and Jennifer Schulte; Tampa Attorneys Jeana Vogel and Crystal Phillips; St. Petersburg/Clearwater Attorney Claudia Blackwell, and Managing Partner Howard Iken.

Can my ex-spouse just pick up and move wherever he or she wants?

No. Currently, Florida law does not allow relocation more than 50 miles without either written permission or a court order.

I agree with Kristal but I would initially answer yes to the question. Just because your spouse does not have the right to move it does not mean they lack the power to move. There is no physical or legal barrier preventing an immediate move.

There are two different ways to handle relocation. If there is an ex-spouse, going in and starting a new court action will prevent re-location. Then neither side can re-locate. In the alternative, there is a relocation statute that prevents a person from moving more than 50-miles from the last residence in the last order. So wherever that person lived the last time there was an order, they cannot move more than 50 miles without going in and petitioning the court.

There are two situations when you can have relocation issues. One is when there is an action that has been initiated; and the other is when there has been a previous divorce and one of the parties is trying to relocate after the fact. With respect to a pending action, there are standing orders in pretty much every jurisdiction that do allow for some sort of safeguards or preventions from one or the other party leaving. There is a certain radius you cannot cross without the consent of another party or the court. In those situations, those standing orders apply and you can approach the court if someone does something to challenge those standing orders. In a situation where a divorces has already been settled, and one of the parties wants to leave or chooses to leave, there are statutes that drive that sort of situation.

I need to add an important fact. Jason is right but his answer only applies to people that follow the rules and existing court orders. Not everyone is in that category.

Are there procedures in place that need to be followed in order for someone to legally relocate? How about hard and fast rules?

Yes. A party is supposed to file right way a petition to relocate. If relocation was to occur and procedure is not followed, you could immediately file for a pickup order. A pickup order would allow the non-offending parent to recover the children quickly.

There is a statute under Florida law regarding relocation and it is a separate statute from the divorce laws. First of all, you have to determine whether a divorce or a custody case is pending because the relocation statute is not applicable unless there is a case pending regarding custody of the children. The proper way for a spouse who wants to relocate would be to file what is called a petition to relocate, serve the other party, and then there is a determination made whether the other party agrees to the relocation or not. It has to be 50 miles or more. If it is less than 50 miles, then technically speaking it is not a relocation that requires court action. If the other party doesn’t agree, then the other party needs to file an objection in court. And then that is supposed to prevent the party who wants to relocate from leaving the state with the children. It doesn’t always work that way. Unfortunately, people in the world that work in don’t always follow the law. So if they do relocate you have to file a motion in court to try to get the child returned.

What should I do if my ex-spouse doesn’t follow the procedure and goes more than 50-miles away anyway?

Now we are getting to the interesting heart of the matter!

If someone violates that, you can always file a motion for a child pickup order. You can file an injunction. There are different things you can file if a court order is in place.

I would immediately hire a private investigator and do a search to find that person. I have never in all of my years practicing had a case where I could not find the person.

If you want to keep your spouse from relocating after a divorce it is important to notify them as soon as you know they are going to move that you object to the relocation. Notifying them verbally or in writing is important. In writing can mean texts, email, or letter, however you prefer just make sure they are aware that you object. If you feel that it is going to happen in an immediate time frame, you can file an action with the court for an emergency injunction preventing the removal of the child from the jurisdiction of the court. You can also ask for a child’s passport services to be suspended. If a case is not filed with the court, it is important that you file it as soon as possible.

If you think the other parent is relocating with the children at any moment – you can choose to play a game of brinksmanship. It is a dangerous game but sometimes you have to do what you have to do. You have to make a decision if the possibility of improper relocation outweighs any potential sanctions by the court for not following the parenting plan. What I am talking about involves keeping the children away from the other parent for a period of time. Don’t do it unless you see clear evidence the surprise relocation is in progress.

I agree with Howard on this. You have to be aggressive with protecting your rights if you think those rights are about to be trampled.

What if I am not divorced yet and my spouse takes off with the children?

If you feel your spouse is going to relocate you definitely have to file a petition for dissolution of marriage immediately. You need to get the temporary orders sent out and get the person served. Then in case they do relocate we are more able to file things with the courts to get them brought back. If you don’t, they are going to be able to move just like you are able to move.

This is a frequent scenario. On the technical side of things; it is not illegal for either parent to relocate with the children if there is no court order in place and there is no court case in progress. There is where things get fuzzy. Upon the filing of a new custody or divorce case some courts will immediately reverse and fix the situation. Some courts will not.

Is the court going to be receptive to someone who gets a new job and needs to move?

That is where relocation can become a hot issue because. For example, a lot of times I have mothers tell me I feel like I’m trapped here because I cannot leave with the children unless I get approval by him and to get approval by the court. The courts want to ensure that both parents get equal access to the children, so that’s their main concern. So just the fact that you get a better job is not going to be the only issue the court is going to look at. Especially if there is a 50/50 child-sharing agreement it is going to be difficult. The court is going to look at what is in the best interest of the child, what is the best environment for the child, and what is best financially for the child.

In any type of relocation scenario you should only talk about what is best for the children and not what is best for you. That includes wrongful relocation situation like the one we are discussing.

Whatever you do act fast and act decisively. Sitting on the situation can come back to bite you.

Agreed. Any relocation can change the way you look at your children and the way they look at you. This can be the most important issue you will ever face. Be sure to treat it that way.

Experience counts. And I always see that in action when a group of experienced attorneys gather in one spot to talk about an important subject. I would like to wrap up by expressing a big thank you for giving all of your opinions. Meanwhile we hope to see our readers come back to the Ayo and Iken roundtable. See you then !