Pasadena, CA Move-Away Lawyer
What Is a Move-Away Case?
“Move-away” is the term that refers to cases in which one parent wants to relocate their children in California. These cases are often complicated, but case history and Family Code statutes offer guidance to both the parent who wishes to relocate their children and the parent who wants to prevent the other from moving.
Can the Other Parent Move Away?
When parents divorce or separate, they often live in the same general area, and child custody arrangements are easy to maintain. However, if one parent is thinking of moving away, it can be stressful for the other parent, as they may not want their children living far away. The fact is, the court cannot prevent a parent from moving out of the area. The Constitution of the United States allows all adults to move freely about the country. For this reason, family law courts cannot settle a parental dispute over this issue by refusing a parent the right to move. What they can do, however, is amend custody orders for the children based on the assumption that one parent plans to move.
The courts will look at the current custody arrangement to determine the rights each parent has in a move-away scenario. If a parent wishes to move their children out of state or even out of town, they must do so legally. When the parents have a child custody order, the one who wishes to move out of the area must notify the other party that they plan to move. In many cases, they must present a request to modify the visitation and child custody order to the court. At this point, the non-custodial parent may contest the custodial parent’s request to move.Family Code 7501 - CA Child Custody Relocation Laws
When a parent has sole physical custody of their children, they have the right to move them unless the court is able to prevent the relocation because it would affect the welfare of the children. Family Code 7501 states this as such:
- A custodial parent may change the children’s residence unless the court decides that such a move would negatively affect the children’s welfare or rights.
- This law is an affirmation of the court decision in In re Marriage of Burgess (1996) 13 Cal.4th25, making that ruling the law and public policy of California.
Additionally, if the custodial parent is moving in good faith, they do not need to show that the move is “necessary.”
What Can a Non-Custodial Parent Do When the Custodial Parent Wants to Move?
When the parent who has custody wants to relocate, the non-custodial parent may request a custody modification to challenge the move. Since the courts are tasked with ensuring the best interests of the children, the non-custodial parent must show that the change in circumstances will be detrimental to the children.
According to the Marriage of Burgess decision, the non-custodial parent must demonstrate a significant change in circumstances that make it “essential or expedient for the welfare of the children” to make a change to the custody order.
Since the non-custodial parent nor the courts may prevent the custodial parent from moving, the only action the court can take is to prevent the parent from moving the children by granting a custody change. For this to happen, the non-custodial parent must meet the high burden of proof that the change in the children’s circumstances would be of detriment to their welfare.
A non-custodial parent can accomplish this in several ways. One way would be showcasing the children’s need for stability and continuity in their custody arrangement would be lost by moving away. Proving that relocation would be harmful to the children’s relationship with the non-custodial parent is another.
How Does the Situation Differ when the Parents Share Joint Physical Custody?
In legal cases in which the parents have joint physical custody and one wishes to move away, they have equal leverage when they enter the courtroom. The courts handle these cases by approaching them “de novo.” This means that the court starts from scratch to determine the best custody arrangement for the welfare of the children.
However, this is one of the scenarios in which the case may become very complex because it only works this way if the parents are truly sharing joint physical custody. At times, parents have a joint physical custody order, but one actually exercises primary custody. In such cases, that parent is said to have “de facto” physical custody. If this parent is the one who wishes to move away, the courts typically apply the Burgess standard.
What If There Is No Custody Order?
What Are the Main Factors the Court Considers in Move-Away Cases?
In relocation cases, the California family court has a great deal of discretion in making their decision. Some of the factors they take into consideration include the following.
- The impact the move may have on the relationship between the children and the non-custodial parent
- The way the move may affect the children’s education
- The potential psychological impact a relocation may have on the children
- The children’s wishes, depending on their age
- The social impact such relocation may have on the children
- The existing custody arrangement between the parents
- The distance of the proposed move
- The reason the parent wishes to move
- The age of the children
Reach Out to An Experienced Family Law Attorney
If you are faced with a move-away situation and need to ensure your parental rights are honored and your relationship with your children is protected, call our firm. The Law Offices of Patricia Rigdon can help.
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