What happens when one parent wants to move away with the child?
Public policy in California recognizes the importance of preserving the parent-child relationship, and promotes the protection of relationships between separated parents and their children. For this reason, California has strict and intricate laws regarding how parents can relocate with their child. These laws are nuanced and will apply differently in every situation. Whether you’re the parent who wants to move, or the parent potentially being left behind, we hope today’s blog answers some of your questions, and provides a better understanding of what comes next in the process.
Disclaimer: Given the complexity of these proceedings, it is important to consult with an attorney about your specific circumstances. This blog is not legal advice, but is merely providing general information. If you have any questions about your matter, please feel free to contact us using the “Schedule Consultation” link below to set an appointment with any of our family law attorneys.
1. What is your specific custody and parenting agreement?
The biggest threshold question when one parent wants to move-away with a child is: “what is the custody and parenting agreement?” Family law orders and agreements are not “one-size fits all.” The facts of each case are critical to evaluating a parent’s request to move away.
For example, one court order may give one parent full legal and physical custody, while the other parent has no visitation rights. This is a very different situation from an order giving parents shared legal and physical custody with a week-on, week-off timeshare schedule.
Existing court orders matter.
Legal custody identifies which parent has decision making authority over important topics such as education and health care.
Physical custody identifies which parent the child can live with. A parent may have overnight visits, but not share physical custody.
Timeshare relates to the actual schedule of visitation.
All of these will be important in the analysis of a request to move away
2. Is notice to the other parent or a motion required?
Once you have identified the type of custody and visitation orders you have, you must determine the following:
- If you are the parent who wants to move – if you’re required to give notice or request permission.
- If you are the non-custodial parent – if the other parent is required to give you notice of a proposed move without filing a motion, or whether they will need to file a motion.
According to California Family Code 7501, the parent who is entitled to the custody of a child has a right to change the residence of the child, subject to the court’s power to prevent a move away that would prejudice the rights or welfare of the child.
This right is not absolute, but is presumptive — that means it’s reasonable to believe that the parent with custody has the right to move with the child. This is one reason that the initial question of step 1 is so important.
What happens when parents share joint legal custody?
When both parents share joint legal custody, then the default rule is that neither parent has a presumptive right to move with the child. In the event of shared legal custody, a parent who desires to move is required to file a request for order requesting permission to relocate with the child.
What if one parent has sole legal custody—and sole or shared physical custody?
In the event of sole legal custody, but shared physical custody, or in the event one parent has sole legal and sole physical custody, the content of your orders will be critical to determining the right of the parent with legal custody to move.
In both of these scenarios, your specific orders may include any of the following:
- The parent with sole legal custody may move away without notice to the other parent
- The parent with sole legal custody must provide x days/x months notice regarding the planned move to the non-custodial parent. This notice must include the address of the proposed move.
- The parent with sole legal custody is not authorized to relocate without the agreement of the other parent or further order of the court.
What should I expect from a court hearing on a move-away request?
Each county in California creates their own rules governing the operations of their court. The rules must follow the laws set out by our state legislature. However, county courts do have a degree of authority over how they follow and implement laws and procedures. These county rules are known as “local rules”.
If you are seeking or arguing against a move-away request, it is important to speak with an attorney in your county for one simple reason: when it comes to move-away orders, courts vary widely in how they evaluate these orders.
Santa Cruz, San Mateo, and Alameda counties are known as “recommending counties”. In any of these counties—before a judge considers a move-away request—the court will require the parties to attend mediation. The mediator will provide a report to the judge which includes recommendations as to how the court should rule.
When it is time to present your request or opposition to the court, the judge will want to hear evidence from the parties and other relevant witnesses as it pertains to the information in the report, as well as additional supporting information.
San Joaquin County is also a recommending county. In San Joaquin, the mediator is made available for the hearing. This allows you to question the mediator on why they made their specific recommendation regarding the proposed move.
Compare those recommending counties with the following two counties.
Riverside county will almost always require the parties to have a custody evaluator complete an investigation into the request and provide a report to the court prior to considering the move-away. An evaluator is an expert and a joint-neutral who is retained to:
- Investigate the request
- Determine if the request supports the best interests of the child
- Provide a report and if necessary testimony to the court regarding the expert’s findings.
If the parties agree with the neutral’s report and recommendations, they can simply agree to follow them. If the parties disagree, then they are able to present their arguments to the court at an evidentiary hearing. At a hearing on a move-away request in Riverside, the evaluator will be present to give their testimony on their findings related to the appropriateness of the move-away request.
Santa Clara County
Santa Clara operates very differently from the other counties mentioned above While parents in Santa Clara are required to participate in mediation, Santa Clara County is not a recommending county. If mediation in Santa Clara is unsuccessful, the mediator will not provide any analysis, recommendation, or information to the court. The matter simply returns to the judge for further hearing.
In Santa Clara, the use of an evaluator is not mandatory. It is up to the parties and the discretion of the judge to decide if the use of an expert is appropriate, helpful, or necessary. The parties can certainly agree to use one, but they do not have to. If the parties are unable to reach an agreement in mediation—and if the parties decide to forego the use of an expert evaluator then the matter will simply proceed to trial where the parties will present their evidence to the court as to why the move is, or isn’t, in the best interests of the child.
How do I prevail on my request?
Whether you want the move, or want to stop the move, the question on both sides is the same: how do I convince the court that my position is correct? It is the burden of the requesting party to provide evidence to establish that the move is in the best interests of the child. However, to defend against a request to move-away, it is still important to know what the court must evaluate in order to provide evidence that undermines the evidence presented by the requesting party.
The court has a very specific set of factors it must consider when analyzing a move-away request. These factors come from two very important & controlling cases regarding move-away requests. The cases are In Re Marriage of LaMusga and In Re Marriage of Burgess.
These factors are:
- The child’s interest in stability and continuity in the custodial arrangement.
- A significant change in circumstances.
- The distance of the move.
- The age of the child.
- The social impact of the move on the child.
- The impact on the child’s education.
- The child’s relationship with both parents.
- The relationship between parents.
- The wishes of the child (if he or she is mature enough to present their wishes to the court).
- The reason for the move.
- The extent to which the parents are currently sharing custody.
In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1101.
- The child’s community ties.
- The child’s health and educational needs.
- The child’s circle of friends.
In re Marriage of Burgess (1996) 13 Cal.4th 25.
Remember, it is the mandate of the court to evaluate what decision is in the child’s best interest. By having parents participate in mediation, it is the hope of the court and our lawmakers that both parties will work together to discuss the move and ultimately decide what would serve the best interests of the child.
In the event that is not possible, the factors listed above, from two separate California Supreme Court Cases where the court expressly identified the factors that the court shall consider when evaluating what is in the best interests of the child.
Even a quick review of the list above shows the detail with which move-away requests are analyzed. As you prepare to either present your request—or defend against a request—to move away, it is critical to approach the request strategically so that the court knows you have considered all facets of your child’s wellbeing.
If You Want the Move Away
Be prepared to present evidence on how the move will not disrupt your child’s stability or important relationships. In particular, spend time demonstrating to the court how you actively work to communicate with the other parent and support the child’s relationship with the other parent. Be prepared to present a clear plan as to how you will ensure the child still has access to the other parent and how the other parent will be able to be involved in the child’s life.
If You Are Opposing the Move Away,
Highlight the child’s connections to their current community. Draw attention to the loss of access to established support systems. Present any evidence you have that the moving parent is not cooperative with co-parenting and may be trying to impact your parent/child relationship.
Whichever side of the request you fall on, always remember that the well-being of the child is the deciding factor in a move-away case. This is not about what parents want, but about what will support the child’s growth and development.
At Gomez Edwards Law Group, we are experienced with custody and visitation disputes involving requests to move away and relocate with minor children. We have represented both the moving parent and the non-moving parent. We have represented parents with sole legal custody as well as those with no custody rights. We are familiar with the various counties of California and their unique and specific rules governing local practices for move-away requests. If you find yourself looking to relocate, or trying to stop a relocation, please use the link below to schedule a consultation with one of our experienced attorneys.
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