Understanding “Removal”

By: 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.  We have agreed to a “Parenting Plan” in which I have about 40 percent of the overnights and she has about 60 percent.

My wife’s family lives in Atlanta, and I am afraid she will want to return there sooner or later as she has few friends here.  I want to have a clause in our agreement that prevents her from moving back to Atlanta with my children.   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. All orders regarding children are always modifiable. However, not having such a clause in your settlement agreement may help her in a later case for removal.  Relocation is governed by a Florida Statute, which provides a list of factors that a court must consider, before allowing the move.

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 current statute took away the presumption and did away with the term “Residential Parent.” Since the statute, many more relocations have been denied, then before the statute.

Under the cases interpreting the present statute, the most tightly drawn anti-removal language does not prevent a judge from allowing removal. In order to allow the “removal” the judge must find that removal is in the best interests of the children and find that the move would allow a continuing meaningful relationship between the remaining parent and the children.

A strong non-relocation clause would be a factor which the judge will consider if this issue is before the court.  It is suggested that you bargain for such a clause in your agreement. This clause might just tip the scale in your favor, provided that your relationship with your children had remained strong and constant after the divorce.

The judge will take many factors into consideration including your wife’s reasons for moving.  Moving for a much better job, to an area in which her family lives, connected with a proposed new marriage to a man who lives in Atlanta might just tip the scale in her favor.

The fewer the factors in her favor the more likely it is that the removal will be denied.  If the removal is allowed adjustments in access will be necessary.  Since alternate weekend overnights would become impossible longer contacts over the summer and holidays would be in order.  Many months have three day weekends which might be an opportunity for “visitation.”  The judge can force the mom to pay for transportation or share it.

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 mhgora@sbwlawfirm.com.