If you find yourself in a situation in which you need to move, and the custody of your child is the subject of a court order, there are certain steps you must take. First, go out and retain the services of a skilled South Florida child custody attorney. Even if the relocation is one made as a result of financial necessity (such as a sole income earner’s involuntary job transfer) or is entirely out of your control (such as a deportation), the law nevertheless says that you must go to court and file a petition requesting to relocate with the child. The court will assess the evidence and determine whether or not the move is in the best interest of the child. It is important that you wait until your petition is granted before making the move.
The case of S.B. and J.B. was an example of this type of dispute. The parents were divorced spouses who shared custody of a minor child. The divorce took place while the mother was pregnant, and the divorce settlement agreement stated that the unborn child would reside primarily with the mother.
Some time later, though, the mother’s new husband received a job transfer to South Florida. Unable to find a new job near home, the husband accepted the transfer, and the family planned to move to South Florida. The mother asked the court to approve the relocation. The court in these parents’ case ordered the parents to attempt to work out their timesharing issues on their own. S.B., even though the court hadn’t issued a relocation order, moved the child to South Florida anyway. This relocation led the couple to return to court. The judge denied the mother’s request to relocate the child. In addition, the judge also modified timesharing, ordering that the child reside primarily with the father. Specifically, the court awarded the father 70% timesharing.
The mother appealed and won her appeal case. The mother’s success hinged upon a very basic legal concept, that of “due process of law.” Due process of law, guaranteed by the U.S. and Florida constitutions, means several things. One of the aspects of due process that can come up in family law cases is being denied notice. The law says that a court cannot grant a party “relief” that was not requested and cannot decide an issue that was not “noticed” prior to the hearing. As a hypothetical example, if you receive notice that your ex-spouse has asked the court to modify your child support obligation upward, and you go to court on what you believe to be a child support modification hearing, the judge cannot decide at the end of that child support modification hearing to double your alimony obligation.
Here, the award of 70% timesharing was not proper because of similar due process problems. The mother had no advance warning that the hearing before the judge could result in an alteration of the child’s primary residence, or award the father anything more than 50% timesharing (which is the percentage that he sought in his court documents). This lack of notice was what amounted to a due process violation and allowed the mother to get the timesharing modification overturned.
Whether you are seeking to relocate with your child, or you find yourself needing to oppose your ex-spouse’s efforts to relocate far away with your child, be sure you have the effective counsel you need. The experienced South Florida child custody attorneys at Sandy T. Fox, P.A. have been providing clients with the helpful representation they need to get the results they deserve. Contact our attorneys online or by calling (800) 596-0579 to schedule your confidential consultation.
More blog posts:
An Out-of-State Move and Your Florida Child Custody and Timesharing Arrangement, Fort Lauderdale Divorce Lawyer Blog, April 19, 2018
Florida Appeals Court Blocks Mother and Child’s Relocation to Nebraska, Fort Lauderdale Divorce Lawyer Blog, Sept. 9, 2015