By: Dr. Mike Gora
Q My wife and I have been going through a difficult divorce for some time. We have a mediation coming up. We have two boys, ages 11 and 8. I travel for business and we have worked out a visitation schedule which fits our lives, although she has about 70 percent of the overnights.
One of the remaining issues is whether she will agree to a clause stopping her from moving with the boys outside of South Florida. My lawyer tells me that such a clause makes little difference; she could still move, with court approval. Is she correct?
A: Ultimately, your lawyer is correct. However, not having such a clause in your settlement agreement has a serious effect. Relocation is governed by a Florida Statute, which provides a list of factors that a court must consider, before allowing the move. That statute has changed from time to time.
For several years, before the current statute was passed, there were appellate cases, which said that the residential parent was favored with a presumption for allowing the move. The statute eliminated the presumption and concept of residential and non-residential parent. Since the statute change, many more relocations have been denied, then before the statute was changed.
Under the cases interpreting the new statute, the most tightly drawn anti-removal language does not prevent a judge from allowing removal. If the judge does not find, after applying the statute, that it would be in the children’s best interest to allow the move, and that the move would allow a meaningful relationship between the remaining parent and the children, permission will be denied.
The non-relocation clause in a marital settlement agreement gives the judge a hook to deny permission to re-locate which might make the difference in the outcome of the case.
The judge may require a far stronger reason for your wife’s wish to move than if there were no limitation clause.
Either way, it might take months to get the issue into court. Her reasons to move might change or evaporate. A basic premise of Florida law is that it is generally best for children to have regular access to both parents.
Michael H. Gora has been certified by the Board of Specialization of The Florida Bar as a specialist in family and matrimonial law, and is a partner with Shapiro Blasi Wasserman & Gora P.A. in Boca Raton. Mr. Gora may be reached by e-mail at firstname.lastname@example.org (561) 477-7800.