"Move-Away" Custody Situations

Significant changes to custody will occur if a parent decides to move away and wants to take the child with them. In today’s blog, we discuss move-away cases in California, what a court will consider in permitting the child’s move, and allowances for temporary out-of-state travel.

What Happens If a Custodial Parent Moves Away?

In California, a “move-away case” arises when a parent that has joint or sole custody decides to move to a location that is far enough to impact the current custodial arrangement. In such a situation, the parents will need to submit new custody and visitation orders.

To begin, the moving parent might file for permission to move with the child, or the other parent might file a motion for a change of custody so that the child can stay. Generally, a parent who has a permanent order for sole physical custody can move away with the children unless the other parent can show that the move would not be in the children’s best interests. Similarly, if the parents have joint physical custody of the children and one parent does not want the child to move, the parent that wants to move with the children must show the court that the move is in the children’s best interest.

In any case, if you are concerned that the other parent may want to move away with your children or if you want to move away with the children, consult an experienced attorney before you agree on a parenting plan to make sure your plan protects your custody rights as much as possible.

Going to Court

The parents must try to reach an agreement about where the child will live and what the visitation arrangements will be with the other parent in such a scenario, but if the parents can’t agree on their own or with a mediator, they will have to let the court make new orders.

Note that in a move-away case, the court cannot decide whether the parent can move (they have the right to, after all). Instead, they decide whether the child should move with that parent and, if so, what the new visitation arrangement should look like. The court’s approach to deciding this depends on whether the parents have joint custody or whether the moving parent has sole custody of the child.

If the parents have joint custody, the court will hold an evidentiary hearing with the parents to make a new custody decision based on the best interests of the child. If a parent has sole custody, they do have the “presumptive right” to move with the child. So, if the non-moving parent wishes to argue against the child’s move, they bear the burden of showing that the move would be detrimental to the child, such as showing harmful impact on the relationship between the non-moving parent and the child.

At the formal evidentiary hearing, the judge will examine evidence and hear live testimony. Parents, child custody evaluators, and others with relevant information regarding the child’s best interests may testify. If the child is 14 years of age or older, they may testify and express their preference to move or not to move. At the hearing, the court will look at evidence related to the following factors:

  • the importance that the child maintain a stable and continuous;
  • the child’s ties to friends, school, and community activities;
  • how long the current custody order has been in place;
  • the distance of the move;
  • the child’s age;
  • the child’s relationship with both parents;
  • the relationship between the parents, particularly whether they’re able to put their child’s interests ahead of their own, and how likely the moving parent is to accommodate contact between the child and the other parent; and
  • the reasons for the move (e.g. cannot be to merely disrupt the relationship between the child and the other parent).

Traveling Out-of-State

Usually, a parent needs the other parent’s permission to travel out of state with their children, especially if they want to leave the country or the other parent will miss their court-ordered visitation due to the trip. If you cannot contact the other parent, you will need to go to court and ask the judge for permission to leave without the other parent’s permission. Be aware that you must have at least attempted to look for the other parent and tell the judge every option you tried.

Some custody orders might specify an allowance or prohibition to take the children out of state or out of the country. If there are limits on whether you can take your children outside of your country or state, you need a court order giving you special permission to travel. If the judge gives you such an order to travel, be sure to get the permission in writing and that the order specifies the dates of travel and any other information so that you can travel with your children safely and legally. It is best to carry a copy of the order on you everywhere you go; you may need to show it to the border patrol, airport staff, or any official that asks to see it.

Let a California Family Lawyer Help

Custody can be difficult to navigate when one parent decides to pursue a big move. Whether parents share custody or one parent has primary custody, moving with the child will significantly impact the other parent’s parenting time with the child and, as a result, their relationship. If you are a parent seeking to move with your child, or if you are the other parent whose child might move with the custodial parent, contact an experienced lawyer immediately for legal support. A good attorney can help you maintain your rights to a relationship with your child, even in the face of a big move.

Contact Claery & Hammond, LLP for legal guidance today.