In the landscape of Florida family law, the desire for stability in a child’s life is reflected in the strict rules surrounding the modification of parenting plans. Many parents mistakenly believe that a major life change, such as moving to another state, automatically gives them the right to rewrite their time-sharing schedule. However, a recent decision by the Fourth District Court of Appeal in Lally v. Lally (2025) serves as a critical reminder that voluntary relocation by a non-custodial parent does not, by itself, satisfy the legal requirements for a modification. For anyone navigating these waters, a Tampa divorce lawyer is an indispensable ally in ensuring that the correct legal standards are met before a court alters a final judgment.
The case of Ashley and Maximilian Lally clarifies a common point of confusion: the difference between the “Relocation Statute” and the “Modification Statute.” If you are a parent considering a move or responding to an ex-spouse’s petition to change your current schedule, the expertise of a Tampa divorce lawyer can help you understand why “best interest” is only half of the battle.
The Background of Lally v. Lally
Ashley Lally (the Mother) and Maximilian Lally (the Father) were divorced in 2018, with a final judgment that established a parenting plan and time-sharing schedule. Five years later, the Father filed a petition to relocate to North Dakota and requested a modification of the parenting plan. He sought a schedule that would give him nine consecutive days of time-sharing each month, arguing that his move and his change of career from law enforcement to farming made the original plan unworkable.
Crucially, the Father moved to North Dakota before the court held a hearing on his petition. The trial court ultimately found that while the Father’s relocation to North Dakota was not necessarily in the best interest of the children to follow him, his permanent move constituted a “substantial and material change” that warranted a complete overhaul of the time-sharing plan. The trial judge then crafted a new parenting plan that significantly altered the Mother’s time.
The Mother appealed, arguing that the Father had not met the “extraordinary burden” required to modify a final judgment. The appellate court agreed, reversing the trial court’s decision and reinforcing the principle that relocation alone is not enough to change a court-ordered schedule.
Relocation Statute vs. Modification Statute
One of the most complex aspects of this case—and an area where a Tampa divorce lawyer provides essential guidance—is the interplay between two different sections of Florida law:
- Section 61.13001 (Relocation): This statute applies when a parent wants to move more than 50 miles away for at least 60 days. It focuses on whether the move is in the child’s best interest.
- Section 61.13 (Modification): This statute applies when a parent wants to change the existing parenting plan or time-sharing schedule.
In Lally v. Lally, the court noted that because the Father was not the custodial parent (the Mother had the majority of time) and because he had already moved, the case was essentially about modification. To win a modification, the Father had to prove more than just “best interest”; he had to prove a substantial and material change in circumstances.
The “Extraordinary Burden” of Modification
In Florida, the law protects the finality of judgments. A Tampa divorce lawyer will tell you that once a judge signs a parenting plan, it is not meant to be adjusted for minor life changes. The “substantial and material change” test is described by Florida courts as an extraordinary burden.
The change must be:
- Substantial: Meaning significant in scope.
- Material: Meaning it directly affects the child’s welfare.
- Unanticipated: Meaning it wasn’t a factor already considered when the original judgment was signed.
The appellate court in Lally reaffirmed a long-standing rule in Florida: Relocation alone is not a substantial change in circumstances. This is especially true when the parent who is moving is the one who has less time with the children. If a non-custodial parent chooses to move away, the court views that as a voluntary choice that should not necessarily result in a loss of time for the parent who stayed behind.
Why the Father’s Case Failed
The Father in Lally v. Lally made two primary arguments for a substantial change, both of which the appellate court rejected:
1. The Voluntary Relocation The court cited several previous cases (such as Rossman v. Profera and Ness v. Martinez) to show that a non-custodial parent’s move is generally insufficient to force a modification. Since the Mother was the primary custodial parent and she hadn’t moved, the foundation of the children’s lives remained stable. The Father’s decision to move to North Dakota was his own, and the law does not reward a voluntary move with a court-ordered modification of the other parent’s rights.
2. The Change in Occupation The Father argued that his shift from law enforcement to farming provided a more flexible schedule that justified more time with the children. However, a Tampa divorce lawyer would have noted—as the court did—that this career change happened three years before he filed his petition. A change that occurred years ago and didn’t result in an immediate filing is rarely considered “unanticipated” or “substantial” enough to overturn a five-year-old judgment.
The Pitfalls of “Self-Help” Relocation
A major takeaway from this case is the danger of relocating before a court rules on your petition. Under Section 61.13001, a parent “may not relocate” with a child if the other parent objects until the court grants permission.
While the Father in this case moved without the children, his decision to relocate before the trial meant the court had to evaluate the situation after the fact. As your Tampa divorce lawyer will advise, moving without an agreement or a court order can put you at a significant disadvantage, as it limits the court’s ability to maintain the status quo and can lead to a finding that your move was not in the children’s best interest.
Protecting the Custodial Parent’s Rights
For parents who have the majority of time-sharing, the Lally decision is a protective shield. It prevents the other parent from moving away and then using that distance as a lever to demand large blocks of “consecutive time” that disrupt the children’s school year and daily routine.
When a Tampa divorce lawyer represents a custodial parent, they focus on the stability of the child’s current environment. In Lally, the Mother successfully argued that her ex-husband’s choice to move should not result in her losing her established time with the kids. The appellate court agreed, noting that the trial court erred in “crafting its own parenting plan” based on a change that didn’t meet the high legal threshold for modification.
What Does “Best Interest” Really Mean?
The trial court in Lally found that it was in the children’s “best interest” to have some time-sharing with their Father. While this sounds logical, a Tampa divorce lawyer knows that in a modification case, “best interest” is the second step of the analysis.
If a parent fails to prove the “substantial and material change” (Step 1), the court is not even supposed to look at the “best interest” factors (Step 2). By skipping straight to what it thought was a good schedule for the kids, the trial court bypassed the legal protection that keeps parenting plans stable. The Lally ruling ensures that the “extraordinary burden” remains the primary gatekeeper in family law.
How a Tampa Divorce Lawyer Navigates Modification
If you are seeking a modification or defending against one, your Tampa divorce lawyer will build your case around these critical elements:
- Proving (or Disproving) Substantiality: We look at whether the change is a permanent shift or just a temporary life event.
- Analyzing “Unanticipated” Factors: We review the original 2018 judgment to see if the Father’s move or career goals were already discussed or foreseeable.
- Evaluating the Relocation Factors: If Section 61.13001 applies, we analyze the 11 statutory factors, including the child’s relationship with both parents and the likelihood the relocating parent will comply with a new schedule.
- Defending Due Process: In the Lally case, the Mother argued the trial court gave the Father more time than he even asked for in his pleadings. A Tampa divorce lawyer ensures that the court stays within the boundaries of what was actually requested.
The Consequences of the Reverse and Remand
Because the appellate court reversed the trial court’s order, the case was sent back (remanded). This means the original 2018 parenting plan is essentially reinstated until a proper legal basis for change is found. For the Mother, this was a hard-fought victory that preserved her role as the primary custodial parent and protected the children’s routine from being upended by a long-distance plan that wasn’t legally justified.
Final Thoughts for Florida Parents
The Lally v. Lally decision is a landmark for the year 2025, providing clarity for parents living in a highly mobile society. It sends a clear message: the court will not change a child’s life just because one parent decides to change theirs.
Whether you are in Tampa or elsewhere in Florida, the “substantial and material change” standard is there to provide your children with the security of a consistent schedule. If you are facing a relocation or modification issue, the guidance of an experienced Tampa divorce lawyer is the only way to ensure that your family’s rights are defended under these strict appellate standards.
Frequently Asked Questions
Does a parent moving to another state automatically count as a substantial change? No. As the court ruled in Lally v. Lally, relocation alone—especially by a non-custodial parent—is generally not enough to meet the “extraordinary burden” for a modification.
What is the “Relocation Statute” in Florida? Florida Statute 61.13001 governs when a parent moves more than 50 miles away. It requires a formal petition and a proposal for a new time-sharing schedule. If the other parent objects, the court must decide if the move is in the child’s best interest.
Can a judge create a new parenting plan if they deny a relocation? Generally, if the judge finds that the move does not meet the legal requirements for a modification (substantial change), they should not rewrite the plan. In the Lally case, the judge was reversed for doing exactly that.
What happens if I move before the judge gives me permission? Relocating without a court order or the other parent’s written consent can lead to a finding of contempt. It can also be used as evidence that you are not acting in the child’s best interest, which could hurt your case for a future modification.
How is a “long-distance parenting plan” different? A long-distance plan typically involves fewer, but longer, blocks of time-sharing (such as several weeks in the summer or one full week a month) to account for travel time and costs.
What is the “extraordinary burden” in a modification case? It is the high level of proof required to change a final judgment. The parent asking for the change must prove that something significant, permanent, and unanticipated has happened that makes the old plan no longer viable.
Can a career change be a “substantial change in circumstances”? It can be, but only if it is a major shift that was unanticipated at the time of the original judgment. In Lally, the Father’s career change happened years prior, so it was not considered a valid reason for a new plan in 2025.
Why did the Mother win the appeal in Lally v. Lally? The appellate court found that the Father’s voluntary move to North Dakota did not meet the legal definition of a substantial and material change in circumstances. Therefore, the trial court had no authority to modify the 2018 parenting plan.
Conclusion
Navigating the intersection of relocation and modification requires more than just a move—it requires a deep understanding of Florida’s strict evidentiary standards. The Lally v. Lally ruling confirms that the stability of a child’s environment is the court’s priority, and voluntary changes by one parent won’t easily break that bond. If you are involved in a time-sharing dispute, a Tampa divorce lawyer can provide the advocacy you need to protect your parenting rights and your children’s future.
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Written by Damien McKinney, Founding Partner
Damien McKinney is the Founding Partner of The McKinney Law Group, bringing nearly two decades of experience to complex marital and family law matters. He is licensed in both Florida and North Carolina and has been repeatedly recognized as a Rising Star by Super Lawyers.