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:
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.
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.
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)