California courts are not likely to grant one parent the right to move to another state and to take with them a child who has a relationship with the other parent.
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Move Away Orders
Move away orders are requests made to a court for one parent to relocate taking the child with them.
Standard of Review
In a most recent case, the custodial parent sought the court’s permission for a child to relocate out of state with the custodial parent. The trial court found, based on the “best interests of the child” standard, that a move away order would be detrimental to the child’s relationship with the noncustodial parent. On the appeal, the court noted that the trial courts properly utilized the “best interests of the child” standard since the parties only had temporary custody orders.
A court deciding on move away orders must consider other factors in addition to the what is in the “best interests of the child.” These other factors are:
- The child’s relationship with each parent
- The parents’ ability to provide for the child
- Whether the child lives in a stable environment
- How long the child has lived in a stable environment.
- The permanency of the custodial home
- The moral fitness of the parents
- The mental and physical health of each parent
- The child’s preference if the appropriate
- Each parent’s willingness and ability to facilitate the child’s relationship with the noncustodial parent.
Case Law
In one case, where a court was deciding on a move away orders, the parents shared joint legal custody and had a 50-50 physical custody. The court based their decision on “the best interests of the child.” The other parent appealed, arguing that the trial court should have used the “substantial change in circumstances” standard to arrive at a decision for modification of custody. The Court of Appeal agreed that the substantial change in circumstances rule should be used when a parent is seeking a change in custody, but that in this case, the parent was not seeking a change in custody since both parents would continue to share joint legal and physical custody and only the physical custody arrangement would be modified. Since the parties shared joint legal and physical custody, the proper standard was the “best interests of the child.”
The California Supreme Court has confirmed that the standard to be used for a move away order is the “best interests of the child.” In a recent Supreme Court case, the custodial parent who had primary physical custody of a minor child sought to change the final custody order so they could move with the children to another state where they had family and had found a better job. The trial court found that, although the custodial parent was acting in good faith, the relocation would be detrimental to the children’s already difficult relationship with the non-custodial parent. That it would not promote California’s public policy that children should have “frequent and continuing contact” with both parents. Since the custodial parent’s request to move would make it difficult to maintain frequent and continuing contact with the non-custodial parent, the trial court ruled the move would not be in the best interest of the child. On appeal, the Court found that the trial court erred by failing to proceed from the presumption that the custodial parent had the right to change the residence of the children and to consider the great need for stability and continuity in the existing custodial arrangement. The California Supreme Court held that in order for the court to reevaluate a final child custody order, the noncustodial parent must show that the proposed relocation of the child’s residence would be detrimental to the child. Detriment is proved by considering many factors, one of which is the impact of the proposed move on the noncustodial parent’s relationship. If the noncustodial parent makes such an initial showing of detriment, the court must undertake the task of determining whether a change in custody is in the best interests of the children.
Initial Request
A move away order is most often requested when a parent who has a permanent order for sole physical custody (also called “primary physical custody”) wants to move away with the children. The move away order will be granted unless the other parent can show that the move would harm the children.
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 best interest of the children.
Child Custody & Visitation
In California, when you obtain a divorce from a marriage with children, you will receive a court order outlining custody and visitation arrangements. Visitation, or parenting time, is based on “the best interest of the children.” The overall goal of these orders is for both parents to maintain frequent and continuing contact with their children.
A move away order is required when a parent, who has either sole or joint custody of their children, decides to move to a location that is far enough away to disrupt the current court-ordered visitation schedule. Because the move will effect the current custody arrangement new custody and visitation orders must be obtained.
Court Petition
Should a parent want to move away with their children, one of the parents must file a motion with the court for new custody orders. A parent can file to obtain permission to move with their children or a parent can file to modify custody so that their children can stay. The court will then decide whether the children should move with that parent and, if so, what the visitation arrangement should be.
If the parents have joint custody, the court will hold an evidentiary hearing to assist in arriving at a decision on a new custody order based on the best interests of the child.
If one parent has sole custody, the parent with sole custody has a “presumptive right” to move with their children. The other parent has the burden to show that the move would be detrimental to the child, creating a change of circumstances and requiring a reevaluation of the custody order. Proving a detrimental effect on the children can be difficult. If the non-moving parent cannot show a detriment, the child will be allowed to move. If the non-moving parent is able to make an initial showing that the move will be harmful to the children, then the court will hold a hearing to reconsider the custody order and determine whether a change in the order is in the best interests of the child
At the evidentiary hearing, a judge will examine any evidence submitted and hear testimony from parents, child custody evaluators, and others with relevant information regarding the child’s best interests. Additionally, the court must consider a child’s wishes regarding custody and visitation if the child is old enough and mature enough to make an intelligent preference. Children who are 14 years of age or older must be allowed to testify unless the court finds that it is not in their best interest. Children under the age of 14 may testify if the court finds that it is appropriate.
Evidence Considered
Other evidence the court will consider:
- The time the child spends with each parent under the current arrangement.
- How long the current custody order has been in place.
- The child’s relationship with both parents
- A child’s relationship and ties to friends, school, and community activities.
- The distance involved for the move.
- The age of the children.
- The parents’ relationship
- The purpose of the move.
Moving After Divorce
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.
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 an 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
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
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
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
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.
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.
Factors Considered
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 versus 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 any 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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