Posted by Nydia Streets of Streets Law in Florida Child Custody

In order for a parent to relocate, a parent must comply with the mandates of Florida Statute Chp. 61.13001. Specifically the parent must obtain the written permission of the other parent or obtain a court order allowing relocation. In the case Allende v. Veloz, 3D18-10 (Fla. 3d DCA February 20, 2019) the mother did not follow the statute and obtain the oral consent of the father to move from Miami to Orlando with the parties’ child.

Two years after this move, the father was exercising Thanksgiving timesharing with the child when he filed an emergency motion to suspend the mother’s timesharing, to grant him custody, to appoint a guardian ad litem and to allow the child to attend therapy. The mother in turn filed a motion for a pick-up order because the father had not returned the child to Orlando on the agreed-upon date.

After a hearing was held on both motions, the court denied the father’s request to suspend the mother’s timesharing and his request for custody, but it granted the motion for appointment of a guardian ad litem to investigate the father’s claims regarding the mother’s neglect of the child. It also denied the mother’s request for a pick-up order. Ultimately, the trial court ordered the child to be returned to Orlando, but specifically stated the order was not a temporary relocation order. The trial court commented that it did not want to reward the mother’s failure to follow the relocation statute, but it felt it was in the best interest of the child to remain in Orlando because he had been in school there for two years. The court made it clear it would have a follow up hearing to determine ultimate relocation after the mother promised to file a petition for relocation which she eventually did after the hearing.

The father appealed, arguing the court essentially ordered a temporary relocation without a relocation petition pending from the mother. To do so was error, the father argued and an abuse of discretion. The trial court disagreed with the father and affirmed the trial court’s ruling, holding “In conclusion, section 61.13001(3)(e) does not mandate that a child must be returned to the non-violating parent when the other parent relocates without following the requirements of section 61.13001. Thus, the trial court has certain discretion in fashioning appropriate relief in such situations. In the instant case, the trial court did not abuse its discretion in denying the Father's emergency motion to for physical custody of the Child and to suspend the Mother's time-sharing. The trial court recognized that (1) the Child relocated with the Father's acquiescence two years earlier; (2) requiring the Child to return to Miami would disrupt his schooling; and (3) appointing a guardian ad litem was necessary to address the allegations in the Father's emergency petition. Further, although the allegations in the Father's emergency petition are serious, the trial court had before it the Child's medical records, which gave no indication that the Child was malnourished, and the Child's school records, which indicates that he was doing well in school at the time of the hearing. Finally, prior to the conclusion of the hearing, the trial court obtained a commitment from the Mother that she would file a proper petition to relocate under section 61.13001(3).6 Accordingly, we affirm the non-final order under review.”

Making sure you follow the appropriate steps when you want to relocate is the first step to success. Schedule a consultation with a Miami child custody lawyer to go over your best case for relocation as soon as you know you will move more than 50 miles from your current residence.