We live in the state of Florida and my husband and his now ex-wife have joint 50/50 custody of their 9 year old daughter. His ex-wife was unemployed and relocated to California in Oct 2009 with the verbal agreement that the child would return to Florida at the end of the school year, which will be June 2010. The mother is now hesitant to have the child return to Florida and wants her to remain living in California. Did my husband give up his 50/50 joint custody rights when he allowed the child to relocate and live in California with the mother for the past 6 months?? Can the mother legally keep the child in California as she has been a resident of that state for 6 months and not allow her to move back to Florida although the court agreement has not been modified? Thanks for any feedback.

No he didn't give up anything yet. But how was it worked out to be 50/50 since the mother moved? Also if she refuses to return the child he can get a court order to enforce the visitation he has and get the child back.

What does the court order specifically say about custody and visitation?

He needs to file to either order mother to return child to allow the 50/50, but how was he going to do it, summer is not 50/50, so was he going to allow some change verbally ?

He needs to get back into court to either change the current or ask for it to be inforced

The ex-wife originally lived in Florida also and the court paperwork and custody order is from the state of Florida. The court order states 50/50 joint custody and the original vistation schedule
In place prior to the mother leaving had the child with each parent with 2 set days a week and alternating weekends. They each had her 50% of the time. The issue is that my husband verbally[B] agreed to allow the child to go to California with the mother for 8 months so the mother "could get back on her feet", with the agreement that the mother and child would return at the end of June and resume with the original visitation schedule. Now that June is approaching the mother doesn't want to return and doesn't want the child to return. So my question would be if the original court order still stands even though the child has lived in another state and if my husband relinquished his rights to his 50% custody when the child left? Does he still have the legal right to have the child return although he voluntarily allowed the child to leave the state if Florida and establish domicile in the state of California for 8 months?? Thank you very much for your help.

First, the original court order is in place. As long as one parent remains in the jurisdiction of the original court, that court has jurisdiction over the case.

So your husband can bring an action in Florida court that the child be returned to Florida. Now whether the Florida court will support that action is a different issue and I can't answer that. They might view the permission to move as a voluntary modification of the order. I'm assuming here that there is nothing in writing that this was temporary. On the other hand, since (and again I'm assuming) he maintained a relationship with the child adhering to his visitation while she was in Florida, the courts might believe it was temporary. A third option will be to modify the order giving him summers and school holidays. I would recommend he consult a Family Law attorney to determine his options. The only thing I'm sure of is that Florida maintains jurisdiction.

Thank you Scott, your answer was very helpful. Yes, he did adhere to his visitation schedule while the child was in Florida. Also, there was nothing in writing stating that the child would return in June 2010, it was simply a verbal agreement. Is there any way that the state of California could prevent the child from returning to Florida as she was residing there for over 6 months? Thanks again.

I don't believe so, Florida still has jurisdiction as long as one of the parents remain there. If both parents were to move, then the primary custodial parent could apply for a change in jurisdiction. But that's not the case here so CA would defer to FL.

Thank you Scott for your time, your answers have been very helpful. One last question, if the mother was to want to obtain full custody or modify the visitation in any way woud she have to request that in Florida or could she do that through California courts? I'm just figuring if she has to do if through Florida then she probably won't be able to as she is so far away. Thanks again.

I'm sorry but you keep asking the same question in different ways. When a court has jurisdiction, then ANY action has to be tried through THAT court.

That doesn't mean she can't try to go through CA courts, but your husband's response to any action filed in CA is that CA does not have juridiction and therefore the case should be dismissed and refiled in FL.

Hello again,

There have been some recent changes in our situation and I was wondering if any of you would be able to provide some feedback. Here is the recent update:


My husband and his ex-wife currently have 50/50 custody in the state of Florida. His ex-wife relocated with their daughter to California to "get her life on track" in Ocotber 2009. The original verbal agreement was for the child to finish the school yr in California and return to Florida with her father to resume permanent residence in FL.

My husband went to pick-up his daughter on June 18th with the intention of the child remaining in Florida permanently, but the child's mother changed her mind and now only wants her in Florida w/ the father for the summer. The child's mother made him sign a notarized document stating that he would return the child to California by August 10th and the child would resume her new residence in California with the mother.

Now, the court papers in FL state 50/50 custody, but he did originally and voluntarily allow the child to leave the state of FL and establish residence in California for 8 months. Would the courts consider this a legal modification of the custody agreement at that time? The child went to school there and completed 3rd grade. He did see the child once while she was in California for a total of 3 days and he was in weekly contact with her. Again, the intent was only for the child to stay there for 8 months and return to a permanent residency w/ her father in FL, but there was NOTHING written, ALL verbal.

I have a few questions:
1. Is there any way that the mother is able to go to California courts and file for full custody or would she have to do it in FL?
2. Is it even possible for the child's mother her to ask for full custody as child lived w/ her in CA for 8 months?
3. Is the child a legal resident of the state of California or state of Florida?
4. How much weight does the notarized document that my husband signed carry? Does he have to abide by what he has signed when FL court papers say 50/50 custody even though he did voluntarily modify this?

ANY help/ advice would be extremely appreciated! Thank you!

1. Already answered several times.
2. Possible, but unlikely to be granted, especially if he can prove the move to Ca was agree to be temporary.
3. That is a moot question since Florida has jurisdiction.
4. Almost none. Notarization simply means that a notary verified his signature. It has NO weight of law and, since he can show that he signed it under duress (the mother would not have turned the child over without it), then it can be voided.

Now that he has the child, it will now be up to the mother to try and get her back. He has a court order giving him 50/50 physical custody. Clearly a move to CA will require that order be modified with either the approval of both parties or a court. And I don't see that happening.

I would have his attorney write her a letter stating that, since there is a court order for custody in place, your husband will continue to operate under that court order. Since her move to CA was voluntary on her part she will need to move back to FL to exercise her rights under the court order. He can further state that, since the agreement to return the child to CA was made under duress, it is considered void. But I would wait until she waives that document at him.

Thank you Scott for taking the time to answer my questions. You seem very knowledgeable on this subject. Do you have a background in family law? Or are you an attorney? Just curious.

Thank you Scott for taking the time to answer my questions. You seem very knowledgable on this subject. Do you have a background in family law? Or are you an attorney? Just curious.

I do have a passion for the law and the skill to do legal research as well as understand legal jargon. But I'm not a member of the bar. However, we do have other people here even more knowledgeable about Family Law than I am and I'm sure they would have corrected me if I said anything untoward.