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Destin Child Custody: Relocating with the Child

A common issue that  parents face after the initial child custody location is when the parent that has the majority of time-sharing, or primary custody, over the minor child(ren), seeks to relocate from the principal address or residence.  When speaking about “relocation” in this blog we are referring to a distance of fifty miles or more from that principal residence and a time period of sixty days or more.  A temporary move (or absence) for reasons such as vacation, education, or health care do not qualify.

The easiest way to resolve relocation is by agreement.  This means that the parents reach a settlement on how to modify the current child custody, time-sharing, arrangement as a result of the relocation.  Often, when we are talking about a significant geographic relocation, the typical shared parenting plan that awards one parent every-other weekend visitation becomes logistically impossible.  As a result of this logistically impossible scenario, that parent may receive greater visitation with the child(ren) during extended winter and spring breaks as well as longer summer visitation.

If the parties can not agree to a change in the time sharing schedule as a result of relocation, Florida Statute 61.13001 requires the parent seeking to relocate to file a “petition to relocate” and serve the petition on the other parent.  After service of the petition, the Court can issue temporary orders, including a temporary order restraining the child from relocating or ordering the child to return if the parent/child have already relocated.

If relocation is contested, the court must make a determination on whether or not it is in the best interest of the child to relocate with the parent.  Some of the factors the court considers are:

(a) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent or other person proposing to relocate with the child and with the nonrelocating parent, other persons, siblings, half-siblings, and other significant persons in the child’s life.
(b) The age and developmental stage of the child, the needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.
(c) The feasibility of preserving the relationship between the nonrelocating parent or other person and the child through substitute arrangements that take into consideration the logistics of contact, access, and time-sharing, as well as the financial circumstances of the parties; whether those factors are sufficient to foster a continuing meaningful relationship between the child and the nonrelocating parent or other person; and the likelihood of compliance with the substitute arrangements by the relocating parent or other person once he or she is out of the jurisdiction of the court.
(d) The child’s preference, taking into consideration the age and maturity of the child.
(e) Whether the relocation will enhance the general quality of life for both the parent or other person seeking the relocation and the child, including, but not limited to, financial or emotional benefits or educational opportunities.
(f) The reasons each parent or other person is seeking or opposing the relocation.
(g) The current employment and economic circumstances of each parent or other person and whether the proposed relocation is necessary to improve the economic circumstances of the parent or other person seeking relocation of the child.
(h) That the relocation is sought in good faith and the extent to which the objecting parent has fulfilled his or her financial obligations to the parent or other person seeking relocation, including child support, spousal support, and marital property and marital debt obligations.
(i) The career and other opportunities available to the objecting parent or other person if the relocation occurs.
The party seeking relocation with the minor child must show by a preponderance of the evidence that relocation is in the best interest of the minor child.  If the proponent of relocation meets this burden, then the parent opposing relocation must then attempt to show that relocation is not in the best interest of the minor child.
If you are a parent facing a relocation issue, I recommend you consult with an Okaloosa Family Law Attorney to discuss your case.
Jeremy S. Keich is a Destin Divorce Attorney  representing clients in matters involving divorce, child custody, child support and paternity issues.  None of the information contained in this blog should be construed as legal advice nor shall the communication be construed as forming an attorney-client relationship.  For more information about Jeremy S. Keich or to contact him about a Walton County Child Custody Case or Okaloosa County Family Law Matter please visit www.keichlaw.com or call (850) 460-2989.

Destin Divorce: Marital vs Nonmarital Assets

Outside of the child custody determinations one of the most heavily litigated issues in a dissolution of marriage (divorce) case is the division of the marital property.  This includes both marital assets as well as liabilities(debt).  Florida acts under the premise that marital property should be divided equitably and has adopted the term “equitable distribution”.  However,   a party may claim  a special equity  in marital property.  For the purposes of today’s blog however the focus will remain on discussing the difference between marital and nonmarital assets

Florida Statute 61.075  defines “martial assets” as:

– Assets acquired and liabilities incurred during the marriage, individually by either spouse or jointly by them.

– The enhancement in value and appreciation of nonmarital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both.

– Interspousal gifts during the marriage.

– All vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs.
– All real property held by the parties as tenants by the entireties, whether acquired prior to or during the marriage, shall be presumed to be a marital asset.
– All personal property titled jointly by the parties as tenants by the entireties, whether acquired prior to or during the marriage, shall be presumed to be a marital asset.
“Nonmarital assets” are defined, pursuant to Florida Statute 61.075 as:
– Assets acquired and liabilities incurred by either party prior to the marriage, and assets acquired and liabilities incurred in exchange for such assets and liabilities;
– Assets acquired separately by either party by noninterspousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets;
– All income derived from nonmarital assets during the marriage unless the income was treated, used, or relied upon by the parties as a marital asset;
– Assets and liabilities excluded from marital assets and liabilities by valid written agreement of the parties, and assets acquired and liabilities incurred in exchange for such assets and liabilities; and
– Any liability incurred by forgery or unauthorized signature of one spouse signing the name of the other spouse. Any such liability shall be a nonmarital liability only of the party having committed the forgery or having affixed the unauthorized signature. In determining an award of attorney’s fees and costs pursuant to s. 61.16, the court may consider forgery or an unauthorized signature by a party and may make a separate award for attorney’s fees and costs occasioned by the forgery or unauthorized signature. This subparagraph does not apply to any forged or unauthorized signature that was subsequently ratified by the other spouse.
If a party makes a claim to the contrary of the normal definitions of marital assets, the burden of proof shall be on the party asserting the claim that the subject property, or some portion thereof, is nonmarital.
The cutoff date for determining marital assets is the date the parties enter into a valid separation agreement (or any other date expressly defined in the agreement), or the date the petition for dissolution of marriage is filed.  The date for determining the value of the assets is the date or dates the judge determines to be fair and just.  The judge may also assign different dates for different assets.

As you can see several issues may arise when seeking to divide marital assets or making a claim that certain property is nonmarital.  If you are seeking a divorce and have marital or nonmarital assets you may want to consider consulting a Destin Divorce Lawyer about your case.

Jeremy S. Keich is a Destin Divorce Attorney  representing clients in matters involving divorce, child custody, child support and paternity issues in Okaloosa and Walton County.  None of the information contained in this blog should be construed as legal advice nor shall the communication be construed as forming an attorney-client relationship.  For more information about Jeremy S. Keich or to contact him about a Walton County or Okaloosa County Family Law Matter please visit www.keichlaw.com or call (850) 460-2989.
 

Destin Child Custody Considerations: The Preference of the Child(ren)

It  is not uncommon for a prospective client(parent) to say that the court should award him/her primary custody of their child(ren) because the minor child(ren)  told that parent that he or she want to live with that particular parent.  However, the child’s preference may or may not matter in child custody determinations because the judge presiding over  a child custody determination, whether during an initial divorce case or in a subsequent child custody modification, must consider and act in favor of what is in the best interest of the child.

Florida Statute 61.13(3) outlines the many factors the judge considers when making initial child custody determinations as well as modifications to original child custody determinations to determine exactly what is in the best interest of the child.  Specific to this blog is 61.13(3)(i) which allow the judge to consider “the reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.”

Based on the plain language of the statute referenced in the paragraph above, the court must first find that the child is intelligent enough and has the adequate understanding to take the child’s preference under consideration in the first place.  For example, a judge is more likely to hear the preference of the minor child if the minor child is fourteen years old compared to the preference of a child who is only seven years old.

From a practical consideration, the attorneys should also be concerned about involving any minor in the  actual litigation by asking the child to testify  in child custody  determinations.   In fact, there are other alternatives outside of hearing the child testify, to notify the judge of the child’s preference and these alternatives will be discussed in a later blog.

However, even if the child exhibits sufficient intelligence, understanding, and experience, as to where his preference is made known to the court, the child’s preference alone is not enough to satisfy the best interest of the child standard in making a child custody determination.  Moreover,  a change in preference by the child, will not qualify as a substantial and material change in circumstances necessary to modify child custody either.

In conclusion, while the preference of the child is helpful for a parent involved in litigation involving child custody, the bottom line is that this factor alone will not be held to be in the best interest of the child and the party seeking child custody must be diligent in proving to the judge that there or other factors pursuant to Florida Statute 61.13(3) which serve as the reason why that parent should be awarded primary custody (or majority time-sharing) over the minor child(ren)

Jeremy S. Keich is a Destin Divorce Attorney  representing clients in matters involving divorce, child custody, child support and paternity issues in Okaloosa and Walton County.  None of the information contained in this blog should be construed as legal advice nor shall the communication be construed as forming an attorney-client relationship.  For more information about Jeremy S. Keich or to contact him about a Walton County or Okaloosa County Family Law Matter please visit www.keichlaw.com or call (850) 460-2989.
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