To determine if one parent can relocate and move the children to another state, you must first determine if there are any custody orders, and if so, if one parent has been awarded temporary or permanent custody of the children.
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California Move Away Order
California move away order is one parent’s request to the court to move their child to a new residence located outside of their current city, county, state, or country. Regardless of the distance of the planned relocation, move away cases are among the most complex of all family law cases. It is important to note that each move-away case is decided on a case-by-case basis. This means that many factors will be considered in deciding whether a move away order will be granted in your case. The outcome of your case will depend on the facts of your case, as well as the judge that your case is assigned.
One Parent has Sole Custody in California
If one parent has been granted a permanent order for sole physical custody by a California Family Law Court, that parent will be permitted to move away with the children unless the other parent can show that the move would be harmful the children.
Parents have Joint Custody in California
If the parents have joint physical custody of the children and the other parent does not want the children to relocate, the parent that wants to move with the children must show the court that the move is in the best interests of the children.
Although the parents may share custody under a parenting agreement entered into when custody was awarded, this can be challenged by the actual time the parents spend with the children. The parent who actually spends more time with the children will have more influence on any decision a judge may order.
California Parenting Plans
Even if one parent is permitted to move with the children, the other parent can still make a parenting plan that takes into consideration the changes in visitation to maximize the time they will be able to spend with their children. One frequently used technique is to use the Internet and “virtual visitation” through web-based camera technology.
Traveling with Children Outside California
You should carefully review any California Family Law Court Order to determine your existing custody and visitation times. Make sure that there are no restrictions on you leaving the State of California or the United States with the children. If there are any such travel restrictions, then you will need to get a court order or, the other parent’s permission. Remember, you cannot make travel arrangements that will affect the other parent’s court-ordered visitation unless, that parent gives their permission or you obtain a court order allowing you to do so.
When traveling with children, you should always keep with you a copy of the most recent court order. You may need to show the custody order and your right to travel with the children to border patrol, airport staff, or other law enforcement officers.
Which State Makes Custody Orders?
If you are trying to obtain a custody order and the other parent lives in different state, generally, the state where the children are domiciled, will be the state that has jurisdiction to determine, or modify, custody and visitation. All states have adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) which sets forth the standards for when a court may make a custody decision and when a court must accept an existing decision from another state.
A state may make a custody decision about a child if any of the following are true:
- The state is where the child has lived for the last 6 months.
- The state is one where the child has significant connections with people in the state; requires proof that the children’s care, protection, training, and personal relationships are based in this state.
- The state where the child is located is where the child has been abandoned or is in danger of being abused or neglected if sent back to the other state.
California Move Away Order
After divorce, one parent often will consider moving to another state. The problem is, that single parent does not realize that they must consider what is in the best interests of the child which often includes fostering a relationship with the other parent. A parent considering a move, with a child, will have to request a move away order from the court.
There are many reasons as to why one parent might consider a move away order after divorce. A few examples include, job loss, job relocation, or the opportunity to make a better living in another state.
Are you facing this dilemma or the threat that the other parent of your child will move? The Court will use many factors to determine what is in the best interest of the child. A licensed attorney can help the Court understand why or why not a move away order might be in the best interest of your child.
California Move-Away Situations
What happens when one parent wants to move away with the children? 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 be harmful to the children. If the parents have joint physical custody of the children and one parent does not want the children to move, the parent that wants to move with the children must show the court that the move is in the best interest of the children.
How to Obtain a California Move Away Order
A move away order is requested when a parent wants to move to another city, county, state or country with their children.
Primary Custodial Parent and California Move Away Orders
If one parent is the primary custodial parent, recent cases in California show that the court is likely to allow the parent and children to move. California Family Code Section 7501 provides that “a parent entitled to custody of a child has a right to change the child’s residence, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child.”
The interpretation of this section of the California Family Code is not that straightforward. There have been many contradictory appellate decisions over the years. Many courts have imposed restrictions on a parent’s right to move and relocate based on factors such as proving the move is “essential, imperative”, necessary or expedient.” Other courts have taken the position that the primary custodial parent has the absolute right to move.
Joint Custody and California Move Away Orders
In cases where the child or children spend a considerable amount of time with each parent and have joint or “shared” custody, the problem becomes more complex and the court takes into consideration the best interests of the child.
Family Code Section §3020(b) promotes that it is the public policy of California to assure that children have “frequent and continuing contact with both parents” after the parents have separated or dissolved their marriage. Courts have found that this statute does not prevent awarding sole custody to a parent intending to move or require them to prove that the move is “necessary.”
Non-custodial Parent Burden of Proof for California Move Away Orders
The custodial parent who is relocating does not necessarily have to prove to the court that the move is either “necessary” or that the move is “in the best interest of the child.” On the contrary, in move-away cases, the non-custodial parent has the burden to oppose the move and show that the move would cause detriment to the child and the custodial parent has a bad faith basis for moving.
Previous Court Order Stipulations effect on California Move Away Orders
If the parties previously signed a stipulated agreement that requires the custodial parent to obtain the other parent’s consent to move, the custodial parent must show that the decision to move was, in fact, made in good faith. Despite this, the non-custodial parent still has the burden to prove that the move would be detrimental to the child.
Using Move as Grounds to Modify Existing Custody Orders
Most disputes regarding a move away arise when one parent having sole physical custody wants to move with the children. In this situation, the parent relocating has the presumptive right to move without the burden of showing the move is necessary. Courts rely on the changed circumstances rule and weight to burden of detriment.
If there is an existing custody order and the primary custodial parent wants to relocate with the child, it is the non-custodial parent who bears the burden of showing that the move would cause detriment to the child and that existing order be reevaluated. Court use their discretion in determining the child’s best interest.
If the non-custodial parent is successful in showing that the move could be detrimental to the child, the court must then decide whether a change of custody is in the child’s best interest. Some factors taken into consideration by the court when deciding whether to modify and change a custody order include:
- The reason for the move;
- How far the child would be moving;
- The child’s age;
- The relationship the child has with each parent;
- The child’s wishes (considered based on age and maturity);
- The child’s stability and continuity in the current custodial arrangement;
- The current time-ratio the child has with each parent; and,
- The Affect of Joint Physical Custody on Move Away Request.
In situations when parents have joint custody, and one parent does not want the other parent to move away with the child, the parent seeking to move will need to request a move away order. The parent will have to show that the move is in the child’s best interest.
Liberal visitation v. Joint custody in California Move Away Orders
The courts use a different analysis in assessing liberal visitation as compared to joint custody situations where the parents share joint physical custody and one parent wants to move with the children. There is case-law that sheds some light on how court’s interpret sole custody with liberal visitation from a joint physical custody arrangement. If the parent’s time-share is less than 30 percent, courts will generally find that sole custody is with the other parent. If a parent’s time is more than 30%, the court tends to look at other factors such as how much time a parent visits to help with homework, participates in doctor visits, parent-teacher conferences and extracurricular activities that is not part of their custodial time. When a parent has a time-share of 45% or more, courts generally characterize the parenting arrangement as joint custody.
International Move Away Orders
International move away orders pose even greater problems for the courts where they must take into consideration: the impact of the child moving to a place with a different culture; the ability of the non-custodial parent to visit and keep up a relationship with the child; and, the obvious problem of retaining California court jurisdiction and the ability to issue orders about custody, visitation and support.
Minimizing Impact of a Move Away
When courts do approve a move away order, courts have tried to lessen the impact of court-approved moves and to encourage “frequent and continuing contact” with both parents in many different ways such as:
- Ordering the moving parent to bring the child back to California on a periodic basis;
- Expanding school vacation visitation periods for the non-custodial parent;
- Pay the non-custodial parent’s expensive to travel to the children for visits; or,
- Allocating all travel expenses to the custodial parent.
Remember, only one state can make a decision on custody and once the first state makes a custody decision, another state cannot make another “initial” decision or modify the existing order.
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