In the prevailing modern economic situations, it’s quite common for California residents to travel long distances in search of work. The distance may be so great that the workers cannot commute on a daily basis and by such they may be required to move out of the state just to be able to provide for their families. Moving by itself can be incredibly stressful, especially if it’s over a long distance, but the process can become even more stressful if the worker enjoys child custody rights under a California child custody order. After all, the child custody order only acts on behalf of the child. It cannot stop the parent from moving but can certainly stop the moving parent from taking the child with them. This is the cause of the many “move-away” cases involving California Child Relocation laws.
Who Can Move Freely and Who Is Prohibited to Move?
Non-Custodial Relocation
A non-custodial parent in California is allowed to move at any time they wish to. However, he or she is not allowed to relocate with the child for whatever reason. Additionally, some arrangements also deny the parent permission the take the child across state lines. This is especially likely if the non-custodial parent is found to have a proven history of child abuse, custodial interference or has supervised visitation. In such situations, the non-custodial parent has to make trips back to California if he wants to visit the child. The parent can also modify the visitation agreement, with the permission of a judge in order to make and make it suitable for the non-custodial parent and the child.
Joint custody relocation
Either parent can move but if they want to bring the child along, then a petition must be filed. However, joint custody must be preserved unless stated otherwise by the court. In most cases, judges issue new parenting arrangements that allows the move while preserving parental rights of the non-moving parent. For instance, one parent may spend time with the child during the school year and the other parent during the summer.
Sole custody relocation
In California, there are no laws prohibiting the sole physical custodian from relocating with the child. However, each case is unique and there may be parenting plans and custody orders with specific provisions limiting or prohibiting the relocation. Parents are warned to operate within the custody agreement. If there are no clear provisions that touch on the issue of relocation, the parent must file a move-away petition in court, especially if the move is objected by the other parent who has visitation rights. The judge has the discretion to uphold the petition in the custodial parent’s favor if it’s unlikely that the move will dramatically alter the child’s life. However, the judge may include an order to protect the visitation rights of the other parent. In cases like this, the relocating parent may be tasked with covering expenses that have to do with non-custodial parent’s visit.
Obtaining California Move-away Orders
Move-away orders in California arise when one parent wants to relocate due to a new job opportunity or he or she is getting remarried. If they plan to relocate with the child, the law requires them to get consent from the other parent first. Conversely, if the other parent turns down the request, then the parent planning to move has the chance to seek a move away order from the court. A move-away order, is therefore, a request made when a parent in a child custody arrangement wants to move to another country, state, county, or city with their child.
Primary Custodial Parent and Move Away Order California
A parent with primary physical custody of the child is allowed to relocate with the child or change the child’s residence as stipulated under California Family Code Sections 7501. However, visitation schedules can be dramatically altered if one of the parents in a joint custody arrangement was to relocate. For this reason, the relocation must be done with the order of a family court or an agreement with the child’s other parent. A move-away petition clearly outlining the reasons for the move must be filed. The parent without primary custody of the child has a chance to dispute the case in court.
The interpretation of Fam. Code 7501 is not that straightforward. Over the years there have been many contradicting appellate decisions since cases have been decided on a case-to-case basis. There many factors considered in deciding whether a move-away request should be granted. In many cases, courts have subjected parents to restrictions involving their move by requiring them to provide proof of how the move is necessary, expedient, essential, or imperative. Other courts have granted the requests by stating that the primary custodial parent has the legal right to relocate if need be. Additional complexities arise if the parents have joint or shared custody, where the child spends a considerable amount of time with each parent. The court has to determine the case based on the best interests of the child.
California family courts always strive to ensure that the child gets to enjoy the company of both parents. As such, Family Code Section 3020(b) seeks to uphold that a child should have frequent and continuing contact with both parents in the event of a legal separation or divorce. Based on previous court decisions, this statue does not prevent the parent intending to move from getting sole custody and neither does it require them to prove that the move is necessary.
With such complexities and liquidity, it's imperative to work with a child custody attorney who knows the law and how cases are decided on.
The Burden of Proof Lies with the Non-Custodial Parent
The parent seeking to move away will file a petition requesting a move-away order but does not necessarily have to prove that the move will be in the best interest of the child or that it is imperative. It is, however, the duty of the non-custodial parent who objects to the move to convince the court that the move will have negative effects to the child or the move is being pursued by the custodial parent on a bad faith basis. In most cases, non-custodial parents argue that the move would frustrate the relationship his or her relationship with the child. If the non-moving parents recommends changes to be made in the custody arrangement, he or she must prove that the child’s best interests will be served.
For example, in one case, a father was able to obtain custody of his children from the mother who moved to a different state. The mother apparently had no justifiable reason for the move other than just to live near her childhood home. The father was able to show the court that the move would cause detriment to the children’s well-being because the children were having emotional struggles as result of the divorce and the long distance would worsen the situation. The court considered several factors including the extreme distance of the move, the children’s poor emotional and social skills, and the parent’s poor relationship with each other. Eventually, the court found that changing custody orders would give the kids more stability and could help improve the relationship between the children and the father.
Condition in Previous Court Order
If the two parties signed an agreement that requires the custodial parent to seek permission from the other parent in case of a move, then parent enjoying custodial rights has the task to prove that the decision made was made in good faith. Even with this, non-custodial parent faces an uphill challenge of showing that the move would negatively affect the child.
Relocation can also be used as grounds to modify existing custody orders. While the primary custodial parent has the right to move with the child, an existing court order may stop them from doing so. However, the non-custodial parent must prove that the relocation would not be in the best interest of the child, and as such, the court orders need to be reevaluated.
If the non-custodial parent is successful in proving the downside of the move on the children, then the court has the task to decide whether changing the current arrangement would be in the child’s best interest. Before the court takes to decision making and modifying the custody order, the following factors have to be put into consideration:
- The age of the child
- The distance of the move
- The reasons for the proposed move
- The relationship between the child and both parents
- The relationship between the parents and their ability to cooperate and communicate effectively
- The parents’ willingness to put the child’s interests above their own
- The child’s interest in the continuity of the current custodial arrangement
- The wishes of the child if they are 12 years or older
- The extent to which the parents are sharing custody
Joint Custody and Liberal Visitation
Joint custody situations are analyzed differently when assessing the issue of liberal visitation as compared to joint custody when it happens that one of the parents wants to move with the children. There’s a case-law that comes into play on how the interpretation will be made on a sole custody arrangement that has liberal visitation in contrast with a joint custody plan. Basically, if the shared time falls below the 30 percent mark, the court may rule that custody is with one parent, in most cases the one with primary physical custody. If it happens that the shared time is more than 30 percent, then the court begins to examine factors such as the time that the parents commit to doctor visits, help with homework, school activities, or other activities that are not part of the custodial time. When the time-share exceeds 45 percent, the courts in most cases decide that the parenting arrangement is more of a joint custody.
International Relocation Orders
International move-away orders are more complex but in recent days, such orders have been treated similarly to domestic cases. In such cases, the court has to take into account the fact that the parent is planning to move to a place with a different culture, the ability to retain California court jurisdiction on the issuance of orders regarding custody, support and visitation, and the ability of the non-custodial parent to maintain their relationship with the child as well as affording visits to the intended location. It’s worth noting that it’s possible for the court top grant move-away orders if the non-moving parent cannot prove that the relocation will cause detriment to the child.
Minimizing The Impact of a Relocation
Upon the approval of move away orders, the court will strive to lessen the impact of the relocation by encouraging the child’s frequent and continuing contact with both parents. This can be achieved through different ways such as:
- Having the custodial parent cater for all travel expenses, including the non-custodial parent’s expensive travel for visitation purposes
- Ordering the custodial/moving parent to bring back the child to California from time to time
- School vacation visitations being expanded for the non-custodial parent
Filing A Request for Move-Away Order
Before you can obtain a move-away order, you must file the necessary paperwork with the family law courts stating why you want to move and how the move will be in the best interest of your child. The move away forms are the same forms used for any other request in a family law case. The only difference is that for the move away request forms one requires to provide a supporting declaration which is the most important part of all the paperwork as it gives you the opportunity to tell your story. The court will then set up a hearing and if your case is more complex, then you may be subjected to a series of hearings.
Contact a Move-Away Attorney Today
Relocation in child custody cases can be very complex legal matters and are oftentimes the most hotly contested issues experienced in family law. California relocation cases can be particularly frustrating and the law can be very confusing since they apply on a case-to-case basis. It’s of utmost importance to find a competent child custody and relocation attorney instead of handling the case yourself. At San Diego Divorce Attorney we take pride in our approach to such difficult cases. Whether you’re seeking to relocate with your child or objecting a move-away order, you can rely on our expertise to attain the best possible outcome. Call us today at 858-529-5150 or fill our online contact form to schedule a free, no-obligation consultation with one of our divorce lawyers.
