May I relocate with the children to another state where I have a job offer with the possibility of career advancement?

Question:
I was divorced back in 2006. My Former Husband and I have two sons, ages 12 and 14. Our sons are good kids, get good grades are active in sports and their father, admittedly, does have a good relationship with the boys. My Husband sees the children on alternating weekends from Friday after school until the following Monday morning; usually one to two evenings per week; equal time during all major holidays; and one-half of the Summer. He has not missed any occasion to spend time with our children, and he is further active in our sons’ sports.

About 3 years ago, I obtained my Masters’ Degree and have since pursued a career as an adjunct professor at the local community college. I recently received tenure but the position offers no career advancement and is not in the area of education for which I have been trained and published. I have searched for a full time position with career advancement in my area of specialty but was only able to find a position at a reputable college in Illinois. The initial starting salary is comparable to what I am currently earning but within two years, I may be making two times what I am currently earning notwithstanding benefits.

I emailed my Former Husband of my desire to relocate to Illinois with our sons and to offer him extended holiday and summer time sharing as well as sharing the costs of transportation. Needless to say, my Former Husband went ballistic and adamantly objected to taking the boys to another jurisdiction. May I relocate with our sons? The opportunity is not available here in Florida, and I truly believe this move will enhance the quality of our sons’ lives.

Answer:
If you desire to relocate with your sons to another jurisdiction more than 50 miles away from your current residence for a period of at least sixty (60) consecutive days, then you will need to request permission from the Court by way of filing a Petition. Section 61.13001, F.S. If a parenting plan is already in place thereby giving your Former Husband court-ordered time sharing, then you will need to further put forth a “revised postrelocation schedule for access and time-sharing” Section 61.13001(3)(a), F.S.

The Court will evaluate a variety of factors in determining whether the relocation is in the children’s best interests. Although the move may enhance your career, this is not the primary basis for the move. You would need to prove, among other factors, that 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”. Section 61.13001(7), F.S.

The Father has grounds to object to the relocation. I believe the most difficult aspect of your request would be whether the substitute time sharing schedule will be “. . . [feasible in] preserving the relationship between the nonrelocating parent … and the child” in light of the Father’s apparent bonded relationship with the children. The alternative time sharing clearly will not provide the Father with the same level of frequency of time sharing or an ability to take part in the children’s activities. Although Florida Law does suggest that the substitute arrangements do not have to provide the same level of frequency of time sharing, your Husband will probably argue that he not only time-shares, but is an active participant in the children’s lives and that the relocation will severely hamper this bond. Let’s assume your Husband is current with his support obligation and that this was never an issue. This is another argument in his favor. Section 61.13001(7)(h), F.S. Finally, your Husband may argue that the move will not enhance the general quality of life of both you and your son’s lives and that any economic gain is speculative.

If you are seeking to relocate, the request in and of itself does not serve as a basis for the other parent seeking a modification of the parenting plan/ time sharing. A modification of the parenting plan and time sharing must be based on a substantial change(s) in circumstance, and a request to relocate does not amount to such a change in circumstance.

The Courts truly struggle with relocation cases, especially where the children have a bonded relationship with the non-requesting parent; the children have established roots in their community including extended family and school; and, the proof of enhancement in the general quality of life is alleged but not a given. Again, the main focal point is the best interests of the children.

The foregoing is not intended as legal advice. If you are in need of legal advice and/ or more information on the recent amendments to Florida’s alimony statute (section 61.08), the please feel free to schedule a free initial consultation.

Child support is established in accordance with section 61.30, Florida Statutes (the child support guidelines).   Generally, a parent’s child support obligation is based primarily on both parents’ respective incomes and is calculated using a formula set out under section 61.30, F.S.    For example, let’s say Father takes home (net) $ 2,000 per month; and Mother takes homes (net) $ 2,000 per month, for a total combined available income of $ 4,000.00 per month.  If the parties have two children together, then the basic guideline support amount for the two children is: $ 1,288.00 per month, of which each party is responsible for 50% (both parents earn $ 2,000 each for a combined $ 4,000), or $ 644.00 per month.   This is the parents’ basic obligation for the support and maintenance of their children (and same is to be applied towards the children’s share of the living and household expenses such as rent/ mortgage, utilities, food, gas for the car, etc.).

What does “child support consist of?”  As explained above, child support includes the basic obligation of both parents towards the child’s (ren’s) living expenses.   I usually describe “child support” liking baking a cake . . . different ingredients go into the baking of a cake.  The first ingredient is the basic obligation.  Then, we add “health insurance” and uncovered or non-reimbursed expenses.  Generally, a parent’s share of the health insurance premiums for the child’s (ren’s) coverage is based on the guidelines.  For example, if the Father has a net monthly take home of $ 3,000 and the Mother has a net monthly of $ 2,000, then the Father’s share of the premiums and any uncovered expenses would be 60% ($ 3,000 divided by the combined $ 5,000, or 60%).   Another ingredient in the child support “cake” is: day and/ or after care.  If a parent has to work or is in school, and as a result the child(ren) has to be put into daycare, then both parents have to contribute towards this expense.  However, the total amount of the daycare (or aftercare) expense is first reduced by 25% (the parent receiving the Earned Income Credit pays is, in essence, responsible for the first 25%), and then the parents share the remaining 75% of this expense pursuant to their respective guideline share.  Some children may have special needs, which is yet another ingredient, so to speak, of child support.

What if a parent is unemployed.  Does he or she have to pay any child support?  How can you calculate his or her child support obligation if the parent is unemployed?   Both parents have a continuing obligation to support their child(ren).    This obligation does not go away if a parent becomes unemployed even if through no fault of his or her own.   If that parent receives benefits such as unemployment, then he or she must pay a percentage of the benefit towards support.  Further, the unemployed parent must undergo a diligent job search to find employment earning comparable pay to that level prior to being let go/ terminated.   Let’s say the Father is court ordered to pay $ 750.00 per month in child support for the care of the parties’ two minor children but then loses his job due to poor economic times.   The Father then pounds the pavement to find work through a variety of sources including job fairs, but is unable to find any emploment within 30 days and he has not yet received his first unemployment check.  The Father misses a child support payment.  Is he in contempt?  Maybe, he is technically in contempt because the Court ordered him to pay $ 750.00 and he paid nothing.  However, let’s assume arguendo that he did not voluntarily resign from his job;  he can prove he’s been looking for work;   he has not yet received his first unemployment check:  and he has no savings or liquid funds in which to pay any support.  If this be the case, I would argue fervently that my client is not willfully violating the court order of support. 

Imputing Income:   What if the Father, in the example above, decides to pursue his dream and opens up a business opportunity or takes a job making much less than he is capable of earning (according to the Mother).    After a period of time of opening up his business, the Father files for a downward modification of his child support because he is not making what he previously was earning.  Will he prevail?  In my opinion, without more facts, I would say no.   I would argue that the Father is voluntarily under- or unemployed and that his prior level of income should be “imputed” to him.  A court can impute income to a parent if he or she is voluntarily under- or unemployed.  Basically put, if the voluntarily under-employed/ unemployed parent is earning $ 20,000 per year but was recently earning $ 60,000 per year, then the court may calculate that parent’s child support obligation as if he were earning $ 60,000 per year.    In order to impute income, the other parent must prove up the under-employed (or unemployed) parent’s recent work history and earnings, qualifications and credentials and the availability of jobs at that earning level in the local community.

If you have any questions, please reply and inquire.  Every case is unique and dependent on it’s own particulars.  The foregoing is NOT intended as legal advice.

Florida Law does provide for situations involving Parental Relocation (of a “parent” with his or her child(ren)). 

First, one must determine if he or she is a “parent” entitled to time sharing with the Child.  Generally, if a child is born to an intact marriage, then the Wife and Husband are the legal parents of that Child.  If a child is born out-of-wedlock (Mother not married to Father), then the Mother is the natural guardian of the Child and, if the Father signs the child’s birth certificate, then he, too, is a legal parent.   Next, a determination has to be made whether the relocating parent is entitled to time sharing with the Child.  Let’s assume the Father signed the child’s birth certificate and is then afforded temporary time sharing with the Child pursuant to a court order.    Most of the overnights are between Mother and Child.  After the court order is entered, the Mother then serves upon the Father a Notice Of Intent To Relocate With A Child.   Accordingly, the Mother wants to move out-of-state with the parties’ child so she can be closer with her family, who will be able to financially assist her and share in daily child care.    What happens?

The Mother’s Notice must comply with the statutory requirements of section 61.13001(3), Florida Statutes.   The Notice must set forth certain matter including: (1)  a description of the location of the intended new residence, including the physical address, city and state; (2)  the mailing address if different then the physcial address; (3)  the home telephone number of the intended new residence, if known; (4)  the date of the intended move or proposed relocation; (5)  a detailed statement of the specific reasons for the proposed relocation, inlcuding as an attachment, any job offers reduced to writing;  and (6)  a proposal for the revised postrelocation schedule or time-sharing together with a proposal for the postrelocation transportation arrangements necessary to effectuate the proposed time-sharing.  The Wife will also need to include the prescribed statement setting forth the Father’s right to object. 

If the Father objects, he must do so in writing, verified, and serve same within 30 days after service of the Mother’s Notice.  The objection must set forth a specific factual basis supporting his request to prohibit the relocation of the Child, including a statement of the amount of participation or involvement the Father currently has or has had with his child.  Section 61.13001(5), Florida Statutes.  

Upon objecting, the Mother will then have the initial burden of proving that the relocation is in the child’s best interests.  Since the current order is “temporary”, then a case is pending.   The Mother would then need to move the Court for permission to relocate.  If the prior court proceeding was concluded (and a Final Judgment was entered setting forth the time sharing arrangement), then the Mother will need to initiate a post-judgment proceeding seeking permission to relocate with the Child.   A hearing on the Mother’s request will be afforded priority on the Court’s calendar.

At a hearing, the Court will evaluate a series of factors in reaching a conclusion on the relocation request.  Let’s assume the Father has been exercising regular time sharing with the child pursuant to the court’s order; that the Father is current with his child support obligation or in substantial compliance; the Mother will be earning just as much at the intended destination as she is able to do here; and neither parent is able to afford the costs of transportation.  If this is the case, then the Court may consider denying the request even though the Mother has family to assist her.  On the other hand, if the relocation “will enhance the general quality of life for both the parent seeking the relocation and the child”, then the Court may consider such a request.  Section 61.13001(7), Florida Statutes.  In this event, the Court may order contact with the child and nonrelocating parent to include time sharing “sufficient to ensure that the child has frequent, continuing, and meaningful contact . . . with the nonrelocating parent”.  Section 61.13001(9), Florida Statutes.

THE FOREGOING IS NOT INTENDED AS LEGAL ADVICE.  If you have any questions or are in need of legal advice, then please feel free to reply to this posting and/ or contact my Office at 727/ 895-5858 for additional information.

Effective October 1, 2008, Florida Law no longer provides that either parent or both may be designated as the “primary residential” parent (custodian) and the other parent as the “secondary residential”.   If the parties cannot agree, then the Court will establish a “parenting plan” which will set forth a “time sharing arrangement”.  Each case is unique and the amount of time each parent spends with his or her child(ren) may be tailored to fit their particular situation.  For example, parent “A” may have each consecutive Monday and Tuesday overnights; and parent “B” would have each consecutive Wednesday and Thursday overnights; and the parties would then alternate weekends (Friday, Saturday and Sunday overnights).  This would be an example of “equal” time sharing (each parent has 7 overnights per two weeks).

The question is whether the amount of time one parent spends with his or her child(ren) impacts the amount of child support?  Yes.  This aspect of Florida Law has not been changed.  Let’s say parent “B” in the example above has at least 40% of the overnights throughout the year, then his/ her child support obligation would be reduced.  This is called “substantial” parenting time.   Section 61.30, Florida Statutes provides for this reduction in “B’s” child support obligation.

Although neither parent is to be designated as the “primary residential” parent, parents still have disputes over  ”time sharing” because of the impact on child support (among other possible reasons).  Let’s say the parties have been living separate and apart for several months and, during this time, “B” rarely exercised any time sharing with his/ her child(ren).  Assume further that “A” has not concealed the child’s location and has even encouraged “B” to spend time, including overnights, with the child.  Now, “A” files for child support.  In turn, “B” counters with his/ her own petition for the establishment of a parenting plan to include EQUAL time sharing.  One could argue that “B” is fully aware of the impact “substantial” parenting time has on his/ her child support obligation and is, therefore, now asking for additional time with the child.  “A” may consider raising the argument that “B” should have limited overnights with the child so as not to disrupt the child’s routine and that the time sharing should be more reflective of “B’s” historical involvement (or the lack thereof) with the child.

Again, each case is unique.  Parents should try to find some common ground when discussing the terms of their parenting plan.  The concern is always the “best interests” of the child!

Here is a basic Florida parenting plan and a supervised parenting plan.