A common issue in child custody matters is when one parent wants to move out-of-state, or a good distance away, usually for a new job or to get remarried.
Under California law, if that parent wants to move and take a minor child out of the area, they usually need the consent of the other parent or a court order granting the move-away request.
There are always complex legal issues that come up if you are co-parenting, but live separately from the other parent. Moving out of state is one that requires the court to consider a number of factors before it can issue a modification of custody decision or previously issued move-away order.
- What, if any, changes in circumstances have taken place since the original custody and visitation order was issued?
- What impact will the move have on the child? Will it be beneficial or detrimental?
- What is the moving parent hoping to accomplish with the move? Is the purpose for moving to prevent the other parent from having contact with the child?
- What is the current custody arrangement? How much time does the child spend with each parent?
What California Law Says
In California, you typically cannot take your children out of the state when a divorce is pending. The lead ruling that applies to move-away situations if you are the sole custodian of your child is the California Supreme Court case In re Marriage of Burgess (1996) 13 Cal.4th 25. It states:
Where “one parent has been awarded sole legal and sole physical custody of a child and the noncustodial opposes the custodial parent’s decision to relocate with the child, a court may deny the noncustodial parent’s requests to modify custody based on the relocation without holding an evidentiary hearing to take oral evidence if the noncustodial parent’s allegation or showing of detriment to the child is insubstantial in light of all the circumstances presented in the case, or is otherwise legally insufficient to warrant relief.”
In cases where custody is jointly shared, the case of In re Marriage of LaMusga (2004) 32 Cal App 4th, 1072, is most frequently cited. If the other parent has frequent and continuing contact with your child, the court starts with the presumption the move will be detrimental.
The court will then seek to determine what is in the child’s best interests by:
- Holding an evidentiary hearing; and/or
- Ordering a custody evaluation; and/or
- Appointing minors counsel.
If you are the parent who wants to move, and you share joint physical custody, you must show the court that the move is in your child’s best interest. Unless there are extenuating circumstances, such as abuse, your request to move being approved by the court may be helped if you can show the court how you plan to make it possible for your child to maintain a good relationship with the other parent.
Today, there are more ways than ever to do that. In addition to frequent physical visits, a parent can stay close to their child through email, or what the court calls “virtual visitation” such as Skype or Facetime.
You need to show the court you are going to foster the relationship with the other parent.
The Best First Step, Great Legal Counsel
Regardless of which approach you take, you’ll need to show the court that moving your child is in his or her best interests. The rules in California family law are always changing. If you want to move away with your child – or you’re worried that the other parent wants to – talk to a lawyer. A family law attorney can help you understand how the law applies to your specific situation.