When you separate or divorce, the incident naturally affects your family. Sometimes, you could move to another location after a separation or divorce and start a new life. One thing a judge can not do in California is to force you to remain in the state after your divorce. However, a judge may change the custody of your child to serve their needs best when you decide to relocate.
Under the law, as a child's sole custodian, you have the right to relocate with them under certain conditions. When judges determine your case, they consider what will be in your child's best interest. This means that relocating or moving could negatively affect your child's well-being, be it physical or emotional, and a judge may decide to transfer custody to the other parent to accommodate your child's well-being.
A relocation case will occur when a custodial parent wants or seeks to move or change their residence to one located outside their neighborhood, city, state, or country. Regarding family law cases, especially relocation, distance does not play a crucial part in these complex cases. If you are facing a relocation case, you should engage the services of an experienced family law attorney.
Relocation cases are usually complicated, and whether you are a non-custodial parent seeking to stop the custodial parent from moving away with your child, or a custodial parent wanting to relocate, you can rely on an experienced family attorney.
Understanding California Custody Law
When divorced, you must agree with your partner about your children's visitation schedule and where they will live. However, if you disagree with your co-parent, you can have a judge create a custodial plan that you and your partner must follow.
The law under family code 7501 in California creates custodial orders to accommodate families with unique needs, determining which parent will have physical custody of the minor and the other parent's visitation schedule. Under this law, when you have your child's physical custody, you can relocate when:
- You have a court order.
- You have a co-parent relocation agreement.
In some instances, you could share both legal and physical custody. Although in most cases, you will find one parent having sole physical custody of the minor even though both parents share joint legal custody. Physical custody of your child will make it easier to relocate, as proving that the move is harmful to the child lies on the contesting non-custodial parent.
What Do These Terms Mean Under California Child Custody Law?
Family cases, especially child custody, can be complicated. Before deciding to relocate with your child, you will need to understand the meaning of these terms:
Relocation
This term means that a custodial parent or a parent with sole custody of the child wants to move away with their child from their current residence to another neighborhood, county, or state.
Primary Custodial Parent
This term refers to the parent with physical custody of the minor. In such a case, this parent usually lives with the child most of the time.
Child Visitation
This term refers to the time your child will spend with the other parent who does not have primary physical custody of them according to your child custody agreement.
Legal Custody Of The Minor
Legal custody of the minor means the parent has the right to make long-term legal decisions for their child. Some examples of legal rights include; the decision on where to take the child to school, hospital, or church.
Joint Custody
This term means that both parents have equal legal and physical custody of their child.
Important Factors To Consider in your Child Custody Agreement Case in California
You should ensure you look at your child's custody agreement when you plan to relocate to California. Since parental relocation plays a crucial role during divorce proceedings, you should have your family attorney address it while drafting a child custody agreement.
If the court awards you sole or joint custody of your child, relocating can quickly become a bone of contention between you and the other parent. However, depending on your visitation schedule or custody agreement, you have the right to the following:
- File a relocation petition at the local family law court.
- to move away with your child to another location.
Your Parental Rights In A Relocation Situation
A relocation petition arises after divorce proceedings where you seek permission from a family law court to move your child from your current address. This move, in most cases, will disrupt the other parent's visitation schedule. Your co-parent may contest your relocation request as it will prevent them from visiting their child as often as the child custody agreement dictates.
Legal Requirement for Relocation Approval
You can move or change your residence as a custodial parent in California. However, this change or move should not disrupt your child's well-being. When planning to change your residence or relocate, ensure that you follow all the legal procedures. These include the following:
Determine The Relocation Distance
In California, there is a certain distance that you can relocate to within the state without worrying about violating the terms of your child's custody. Sometimes, these restrictions are about 50 miles from the child's hometown. These geographical restrictions can duffer, and you should consult your family lawyer before relocating.
If you are relocating to a location that does not violate your child custody orders, you do not have to seek permission to relocate with your child. However, you will need to update the other parent and the court with your new address.
Talk to The Other Parent
If your proposed move breaks the geographical restriction on child custody, you must talk with your co-parent. This may be tricky, but creating a relocation agreement can save money and time.
After you have come up with a relocation agreement, you will still need to have the court authorize it before you can enforce your agreement.
Take A Closer Look At Your Child Custody Order
Assuming you disagree with your ex-spouse and still want to move away, you should evaluate your current child custody order.
In California, most judges assign sole or joint custody to the parents after a divorce. Ensure to double-check the type of custody you have before considering relocating.
File a Written Relocation Petition Notice
When you have sole custody of your child, the court considers you to have a presumptive right to relocate with your child. However, even with sole custody, you must file a relocation petition at your local family court before moving away with your child.
The local family court will schedule your first relocation hearing later on. This relocation request is a written notice of your plans if you plan to do so with your child for more than 30 days.
A relocation notice aims to give both parents ample time to devise a workable visitation schedule or work out a new custody arrangement. It would be best if you issued the relocation notice at least 45 days before the proposed move date to achieve this.
Sometimes, circumstances may require you to relocate suddenly. If this is the case, ensure you communicate this with the other parent. Communicating with the other parent could positively impact the judge evaluating your relocation case.
During the relocation hearing, be prepared to show the court how the move will benefit your child. You can achieve this by having relevant supporting documents and answering the judge's questions candidly.
How You Can Have The Court Approve Your Parental Relocation Request
Under California family law, you have the presumptive right to relocate as a custodial parent. However, this presumptive right is not set in stone, and a judge can change your custody to support your child's best interest. For example, if the noncustodial parent challenges your move-away request and proves to the court that the proposed move would negatively affect your child, then the judge can transfer custody to them. You will therefore need to work hand in hand with a trustworthy family law attorney to help you win your case.
When you have sole custody of your child, you can travel freely and sometimes even relocate! However, if you have joint custody, you will need to carefully look at your custody order to ensure that you do not violate its terms and conditions. If relocating affects the other parent's visitation schedule, or if you are joint custodians, you will have to go to court before relocating.
Relocation Hearing
In California, it's possible to have approval for a relocation hearing on your child's custody case without automatically losing your rights as the custodial parent. If you need to relocate and meet all the reasons a court approves, you can keep your child's custody. The court will always look out for your child's best interest, and if they meet these reasons, it will allow you to maintain your child's custody.
The court will allow a change in your child custody if your move negatively impacts your child. If you are moving due to a work-related issue or for the betterment of your child's future, the court will approve your move. However, the court will have to schedule a relocation hearing if The other parent contests your relocation request. During this hearing, the court will determine if you need to change your custody agreement.
Factors To Consider During A Relocation Hearing in California
It would be best if you were reassured that your proposed move would make you lose your child's custody simply because it will be hard on your child. However, if the noncustodial parent can prove to the court that your proposed move will harm your child, the judge may decide to give them custody. To change a child's custody, a judge must consider the following:
- The kind of harm your child will suffer due to relocation.
- The court will look into Your child's need for stability and continuity.
- The court will consider the relationship between the child and the other parents.
- The family court judge will consider the distance between the child's current location and the proposed location.
- The communication between the parents.
- You will have to give the reason for the proposed move.
- The judge will consider if the proposed move will negatively impact the relationship between the child and the nonmoving parent.
- How the move will affect the child's physical, educational, and emotional needs.
- If there are extended families in the proposed relocation place, the child could interact with and have a better social life.
You should note that a family law court judge has the sole discretion on ruling your child's case. Every case is unique, and a judge will decide what will benefit your child. Some issues that could complicate your relocation case hearing include
- Your child's visitation schedule.
- Any child custody modifications are and could negatively affect your co-parents' time with their child.
Contesting a Relocation Request as a Noncustodial Parent
You can contest the custodial parent relocation request in court as a noncustodial parent. You must prove to the court that your child will fare better in California and that the move will harm your child. One way of showing the court that your child will be better off in California is by demonstrating that they have extended family members in the state who are close to your child and that the state has better education opportunities that benefit your child.
When you file your objection in court, you can take the opportunity and request sole custody of your child or have the court modify your current custody agreement.
What Happens When Both Parents Agree to Relocation Plans?
Sometimes, both parents agree that a relocation is in their child's best interest. If this is the case, both parents should have a written relocation agreement stating they agree to the proposed move. In a relocation agreement, parents should establish conditions for their child custody, like a visitation schedule and when each parent should have the child.
Afterward, you can take this agreement to the court and have a family judge look at it. Once the judge approves your relocation agreement, you can move away with your child.
What Happens When You Relocate Without A Custody Agreement?
Technically, nothing prevents you from relocating with your child without a custody order in place. However, it will only favor you to relocate if you create a visitation schedule with your co-parent and have a court order allowing you to relocate. If you relocate and the co-parent files for custody transfer, a judge could order you and your child back to California.
Types of Child Custody Relocations
Non-Custodial Parent Relocation
The law allows you as a non-custodial parent to relocate freely anytime you wish to move away. However, it would help if you did not relocate with your child, especially when:
- You have a history of child abuse.
- You have a supervised visitation schedule.
- You have a history of custody interference.
After relocating, you can request the court to modify your visitation schedule.
Joint Custody Relocation
Relocation will affect your visitation schedule when you have joint custody of your child with the other parent. You will have joint custody when you and the other parent have equal authority over your child. With joint custody, both parents spend roughly the same time with their children.
In a joint custody case, if you are the primary physical custodian of your child, you can relocate with your child as long as you file a relocation petition at your local family court. In the relocation petition, you must give the court your reason for moving away. You should be aware that the other parent may choose to contest your relocation petition order.
Under the law, a family court judge must always preserve joint custody of your child. When you want to relocate, a judge will have to develop new parenting ways to preserve your parental rights while allowing for relocation. The judge can decide that one of you should spend time with the child during summer while the other parent has the child during the school year.
Sole Physical Custody Relocation
If you have sole physical custody of your child, you can freely relocate with your child. However, there can be some custody orders that limit or prohibit relocating. Therefore, before relocating, you should go through your custody order to ensure you follow it.
Additionally, you should file a relocation petition if you are still looking for a relocation clause on your custody order, particularly if the co-parent is contesting your move.
After evaluating the facts, a judge can as easily decide to give the child's other parent primary custody as they can grant your move-away request. So it's important to have strong, compelling arguments before bringing this type of petition to the court.
Contact an Experienced Family Lawyer Near Me
Facing a divorce or a separation can negatively affect your life, and you may need to relocate and start afresh. It's okay to feel overwhelmed after going through a divorce, and if you want to move away to be close to your family and friends or to chase your career dreams, you should comfortably do so. However, relocating can come with a lot of complications. You will need a trusted family law attorney who understands your need to start afresh.
At San Diego Divorce Attorney, we know you are looking to move to another location with your little one. Our legal team will dedicate our resources to ensure you obtain first-rate legal representation, and we aim to see you go about life content. Contact us today at 858-529-5150 to schedule a non-obligatory consultation.
