A legal ‘gotcha’

You probably do not know that in about 85 percent of all divorces litigated in Florida, at least one party is not represented by an attorney. Many of these cases are between two people who have had no children together, have been married a short time, and have little income and no marital assets.

On the other hand, many of the cases in which no attorneys are involved do involve children. In those cases, the judge’s know that they must help the couple come up with a written parenting plan during the case. This is the document in which the couple agrees, or the judge orders, the amount of overnights with the child that each parent will have, and divide holidays, school breaks and summer vacations.

When that plan is completed and decisions are made about child support and property issues, a final judgment will be entered by the court setting out all of the court’s findings and decisions, or adopt an agreement that the couple has come up with without the help of counsel.

At that time, it is doubtful that the couple knows that neither of them can move to another state or far from the other in Florida with their children, without filing a petition with the court to allow the move and follow that petition to a final judgment allowing the move. The petition can be defeated in court if the judge finds that moving is not in the best interests of the child or children.

It is likely that neither the mother nor the father, who has not been represented by counsel, and does not have a law degree, knows that they cannot move without the court’s permission.

The requirement to apply to a judge for permission to move back to one’s home town, to be closer to a parent or brother or sister, friends or for a job is not waived by the other parent through a failure to pay child support or even a failure to take advantage of one parent’s “visitation” or access rights to their child or children for many years.

There is a statute which allows a custodial parent to end the other parent’s rights in a case where the missing parent abandons the child but that case statute takes a high level of proof and proof that there is no remedy other then ending parental rights available. The typical person who gets divorced without counsel has never heard of the availability of that statute either.

There is no statute or Florida Rule of Judicial Administration which requires the judge or the clerk of the court to notify everyone who gets divorced about the requirements which must proceed moving away with your children without getting the court’s permission.

To make matters worse there is a significant prejudice against the party who makes such an unauthorized move when the other parent files a claim to have the other parent return to Florida or South Florida with the child or children.

Even though the parent who left had no idea of his or her obligation to get court permission before they moved to be with family, or a new husband or wife, or job, it is held against them, which clearly seems a bit unfair. Perhaps the court clerk should be required to point this rule out to every person who files a divorce case or gets served with a divorce case with notice of this law when the case begins and when the case ends.

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About Pedro Heizer

I'm a person of simple taste, all I need is some country music, Batman, Star Wars, sports, coffee, and most importantly Jesus Christ, because what profits a man if he gains the whole world and loses his soul? View all posts by Pedro Heizer

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