What are your chances of obtaining a court order in Californiato take your child to another state to live?
The Law Offices of Edward Misleh, APC is a Sacramento law firm, located in Sacramento, California that practices California family law and California child custody and California guardianship. We represent clients in Sacramento, California and in Northern California with services they need and deserve when addressing California child custody, California guardianship of a minor child, and California move-away orders. Call now our Lawyer Hotline. Call now 916-443-1267.
Move Away Order
I want to move. Can I take our children and move? Can I be stopped from moving?
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. A move away order is requested when a parent wants to move to another city, county, state or country with their children.
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.
What happens when one parent wants to move away with the children? What needs to be proved?
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.
Primary Custodial Parent
I am the primary parent. Can I take the children with me?
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.
We have joint custody. Can I move and take the children with me?
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
I have visitation and the other parent wants to move and take the children.
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 Stipulations and Court 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
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 the Impact
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.
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