Experienced Move-Away and Relocation Attorney
Law Firm Specializing in Child Custody and Visitation Disputes Involving Move-Away and Relocation Issues in the Inland Empire of Southern California
The rights of each parent in move-away situations depend on the current custody arrangement. A parent cannot simply move a child out of town or out of state without jumping through some legal hoops. If a child custody order is in effect, the moving parent must notify the other parent that they intend to move, and oftentimes, they must often bring a request to modify the child custody and visitation order to court. The non-custodial parent then has a right to contest the request of the custodial parent to move.
Move-Away Cases and Physical Custody of the Child
Move-Away Parent has Sole Physical Custody:
A parent with sole physical custody of a child has the presumptive right to change the child’s residence, subject to the court’s ability to prevent a relocation that would “prejudice the rights or welfare” of the child, pursuant to California Family Code 7501, which states:
(a) A parent entitled to the custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child.
(b) It is the intent of the Legislature to affirm the decision in In re Marriage of Burgess (1996) 13 Cal.4th 25, and to declare that ruling to be the public policy and law of this state.
Moreover, the custodial parent does not have to show that the move is “necessary,” assuming the parent is moving in good faith. (See Marriage of Burgess (1996) 13 Cal.4th 25)
The non-custodial parent can challenge the relocation by requesting a custody modification based on a showing of changed circumstances and detriment to the child. As discussed in Marriages of Burgess, the non-custodial parent must show a substantial change in circumstances rendering it “essential or expedient for the welfare of the children” that there be a custody change. The non-moving parent cannot prevent the move of the custodial parent. Parents have a constitutional right to travel freely (i.e. move) and the family court cannot impede that right. However, the family court can prevent the move of the child if the non-custodial parent is able to meet the high burden of proving a substantial change in circumstances rendering it “essential or expedient for the welfare of the children” that there be a custody change.
To show detriment, the non-custodial parent must show that the proposed move-away would be detrimental to the child. Examples of this include:
- Detriment to the child’s relationship with non-custodial parent, and/or
- The child’s need for continuity and stability in the current custody arrangement.
Move-Away Parent has Joint Physical Custody:
If the parents currently share joint physical custody, they enter the courtroom on a level playing field. In such a case, the court must approach the move-away case de novo. In other words, the court essentially decides from scratch what custody arrangement is in the child’s best interest (see California Family Code 3011, 3020, 3040).
However, this standard only applies if the parents are genuinely practicing joint physical custody. In the event that there is a joint physical custody order but the move-away parent exercises the actual majority of custody, then the Burgess standard discussed above is applied because that parent is deemed to have ‘de facto’ physical custody.
Among the factors that the court ordinarily should consider when deciding whether to modify a custody order in light of the custodial parent’s proposal to change the residence of the child are the following: the children’s interest in stability and continuity in the custodial arrangement; the distance of the move; the age of the children; the children’s relationship with both parents; the relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests; the wishes of the children if they are mature enough for such an inquiry to be appropriate; the reasons for the proposed move; and the extent to which the parents currently are sharing custody. Marriage of LaMusga (2004) 32 Cal. 4th 1072, 1101
Custody Has Not Yet Been Determined:
In the event that no final custody order has been rendered at the time of the proposed move, then a move-away request is decided solely on the “best interest of the child” standard (see California Family Code 3011, 3020, 3040).
The California Family Court Has Broad Discretion in Move-Away [Relocation] Cases
The court will consider such factors as:
- The age of the child
- The reason for the proposed move
- The distance of the proposed move
- The parents’ existing custody arrangement
- The social impact the move will have on the child
- The child’s wishes, depending upon his or her age
- The psychological impact the move will have on the child
- The impact the move will have on the child’s education
- The impact the move will have on the child’s relationship with the noncustodial parent
The family court must ensure that the child’s relationship with their other parent is protected and weigh the moving parent’s right to move freely against the child’s right to have frequent and continuing contact with both parents and the custodial rights of the non-moving parent.