Relocating with the kids

You got primary residential care ("primary custody") of the kids, and now you or your new spouse wants to move out of state for that great new job. What do you have to do to move?

In Florida, you must (that's MUST) notify the other parent before you can move more than 50 miles away. You notify the other parent (and anyone else with visitation rights) by giving them a written notice and at least 30 days to file against you in court. The notice has to be sworn to and signed before a notary, along with some other technicalities.

The other parent then has two choices:
1) Enter into an agreement with you to specify how visitation and transportation will work once you move, or
2) Let you take them to court within 30 days after their notice time is up.

If you go to court, the judge will decide what's best for the kids. The judge will look at how visitation will be affected, whether step- and half-siblings will be affected, the life the kids will have at the new location versus the current location, the impact on education, the impact on emotional and physical health, special needs of a child, etc.

Recusing the old judge and getting a new one

So you think the judge hates you, huh?

Well, maybe, but just remember, it could mean that you are just wrong.

But, you say, the judge rules against me at every hearing! Well, maybe you're just wrong at every hearing.

In all my years of practice, I've only ever asked one just to recuse himself (step down) from a case. And that was only because he said something that I don't think he meant to say, but it made it look as if he was drastically opposed to my client. Judges are, by and large, very fair people trying to do the right thing. We lawyers almost never file motions to recuse judges, and there's a good reason for that: almost all judges are fair and honest. Even in those rare times that I lose a motion -- very rare :-) -- I've almost never thought the judge was biased or, for that matter, even wrong. Notice I said "motions." I can't remember the last time I lost a trial. (What's the point of a blog if you can't brag?!)

However, there is a way to get a new judge, and I'll tell you how it's done. But beware, if the judge doesn't step down, imagine what a position you'll be in after you've filed this kind of motion and lost. You think the judge didn't like you before? Imagine how much he or she will like you after you accuse him or her of being biased or incompetent.

File a Motion To Disqualify or Recuse the Trial Judge. In your motion, you'll have to describe why the judge needs to step down and order the clerk to assign a new judge. You'll also have to say why you "fear that you could not get a fair and impartial trial from the judge" and you'll have to swear to all of it. You may want to look at Florida Statutes Section 38.10 and the Florida Rules of Judicial Administration 2.160(f). If the motion is found legally sufficient (done right), the judge should immediately enter an order granting disqualification and proceed no further in your case. In other words, if you write the motion correctly, the judge isn't allowed to say if you are right or wrong about the alleged unfairness. The judge can only say, "you got the motion legally right, even if I don't agree with what you say, so I have to step down." Technically, you can't lose, but I've seen it happen to many experienced lawyers.

Remember, though, this is powerful stuff. You never want to file this motion and lose. It's a last ditch effort to help you win. If you lose, you may end up worse off than ever. As one of the partners in my law firm likes to say, "If you try to kill the king, you'd better kill the king."

Getting an injunction and why

The Florida Office of State Courts Administrator reports that more petitions for domestic violence injunctions are filed than anyl other type of family law case, including divorces, child support cases, adoptions, even cases charging juveniles with crimes.

That's an astonishing statistic. Now, while I recognize that many people use this type of action to get their spouse kicked out of the house and get custody of the kids, I'm sure the great majority of cases are legitimate and true. That is to say, there are a lot of women (and sometimes men) and children being abused in this state.

Getting an injunction against someone in Florida is pretty easy (some would argue too easy). Just go to the courthouse and ask where you file for injuctions, and they'll take it from there. You'll have to write out and swear to how you were threatened or injured. You'll need to describe at least two threats or injuries if the person you are trying to get the injunction against is not a family member, member of the household, a relative by blood or marriage, or someone you were romantically involved with. There should be no fee to file for an injunction, but you may want to check with your county clerk to be sure.

Once you've completed your affidavit stating what happened, your affidavit will be taken to a judge, usually right away. The judge will then decide whether to grant you a temporary injunction. If your temporary injunction is granted, you'll be given a hearing about 15 days later to prove your case. If your injunction is denied, you may still be given a hearing, even though you won't have temporary protection.

If you are given a hearing, the person you are filing against will be served with the paperwork about the hearing date and time. If the temporary injunction was granted, the person will also be told to stay away from you, leave the house, not contact you, or whatever else the judge orders.

If you don't show up at the hearing, the temporary injunction will be dissolved.

If you do show up, you will have to make your case (and the other person will make theirs), and the judge will decide if the injunction should continue and for how long. Injunctions usually last one year, but the length is up to the judge. Some even last forever.

There is no jury in injunction court, and it's a lot like the People's Court. Lawyers, however, are permitted, and the best way to lose is to show up without a lawyer when the other side shows up with a lawyer. Strongly consider hiring a lawyer to help you with your hearing. Many times, injunction judges will order temporary custody and child support at the hearing, so be ready to ask.

Don't use your lawyer for visitation agreements while the divorce is pending

Well, today is Friday, which means I'll get a flurry of faxes from other lawyers about how their client hasn't been able to work out visitation for this weekend with my client, and now the opposing lawyers are demanding this, that, and the other thing or else they'll rain down horrible and numerous contempt motions on my client if I don't respond by Friday at 5 p.m. Good luck with that.

The faxes usually come in at around two or three in the afternoon. The funny thing is, we're usually closed on Friday afternoons, so I don't even see the faxes until Monday morning.

I really get a kick out of that. It's not that I don't want people to see their children. Just the opposite, I want people to see their children. I just can't believe that everyone waits until Friday to do something about it.

First of all, did you not see the weekend coming? Did you think there wouldn't be a weekend this week? Didn't you realize that every single week ends in a weekend? Did Tuesday somehow go by and you were thinking, "I wonder if there will be a weekend this week?"

Worse still, did your lawyer forget there was a weekend this week? Didn't your lawyer realize that Friday afternoon is too late to do anything about visitation?

But while all this is funny to me, it's really not funny at all to the kids who don't get to see their other parent that weekend. Especially if the kids expected to see the other parent that weekend, then suddenly find out it won't happen. In fact, to the kids, it may be downright confusing, disappointing, maybe even devastating. More and more, studies are showing that divorce proceedings don't hurt kids emotionally, they destroy kids emotionally.


So here's the advice of the day: don't call your lawyer on Friday and say, "You've got to do something! He/she is not answering my calls" or "He/she is not responding to my emails" or "He/she is not agreeing to the time I want."

Here's a better plan: you know that weekends and holidays are coming. Bite the bullet and sit down with your soon-to-be-ex-spouse and work all this out well in advance. You may not be satisfied with the solution for now, but it's better than panicking on Friday. And it's a whole lot better than letting the kids down.

Worse still, if you have to go before the judge to get visitation, the judge will ask, "What did you do to get visitation?" If your answer is, "Well I had my lawyer send out a fax," you'll only demonstrate that you have no ability to co-parent, no ability to put the kids first. If you say, "I tried to call, I tried to email, I sat down with my spouse but my spouse won't agree, I did everything I possibly could, and finally, with all options exhausted, I called my lawyer," you will look to the judge as if you are, by far, the best parent. You'll look like the one who should have the kids. Don't call your lawyer, call your spouse.

I know what you think: well, Brent, if you'd respond to those faxes, maybe you'd be helping the kids. I know, I used to think that way. believe, I used to stay very late on Fridays working out visitation for people who should have worked it out for themselves days or weeks earlier. Now I realize that if I work it out for them this time, I'll have to work it out next time. And next time. And next time. My job, I realized long ago, is to be lawyer, not parent.

Yes, it's Friday and I hear the fax machine. Stacks of paper will be coming in soon from lawyers doing no more than proving that their clients have no ability to co-parent. Can't wait to use that against them at the custody hearing.

Fridays are busy days for my fax machine, but, hey, you ought to see the day before Thanksgiving!

Yes! Get a lawyer!

The purpose of this blog is to answer some general questions I get asked about Florida family law. In the year I've been posting, the blog has become quite popular. I'm now hearing me get quoted to me. You read that right, people are quoting me to me. Some people don't even realize they're quoting me to me. They call or come in and say, "I read on the internet that..." and I realize that they were reading my blog. Some people even print out quotes by me and bring them in to show me. It's fun to say, "Yeah, that was me who said that." Suddenly I realize the importance of what gets said here.

But what I say most of all -- in this blog and elsewhere -- is "Get a lawyer!" I say this most of all because I'm asked it most of all. More often than all other questions I'm asked put together, someone will say, "My case is X, should I get a lawyer?"

This answer is always "yes, you should get a lawyer."

I don't say "yes" just because I'm a lawyer. I say it because another frequent question I get asked is "I didn't have a lawyer, my case get really screwed up, now I'm in trouble, can you fix what went wrong?"

The answer to "Can you fix it?" is usually "maybe" and sometimes "no." It's rarely "yes."

See where I'm going here?

Sometimes I'm amazed they even let people in the courtroom without lawyers. After all, they don't let people in the operating room without doctors. Trust me, having a lawyer for your divorce is as important as having a doctor for your surgery. In both cases, the rest of your life can very pleasant if things go right and very awful if things go wrong.

I know lawyers are expensive. I know good lawyers are really expensive. But almost nothing is more expensive than having your life screwed up by a bad divorce. I wish I could say, "It's all right, save your money, go it alone." But that would be the equivalent of saying, "Sure, take out your own tonsils. It will hurt a lot, but you'll save money." Please, please, please, get a lawyer.