Move Away Law In California
As happens sometimes in divorces, both parents are sharing custody of their child or children, and then one parent decides to move away. This leads to many questions, “Can I move with my children?” “Do I have to leave my child with his or her other parent?” “Am I stuck here forever?”
These questions are what is called “move away” issues. This is a very technical issue in California law. It is generally challenging, but not impossible, to be granted the right to move away with your child. The facts of each case help the Court to determine if your “move away” proposal will be granted.
If you want to move away with your child, you should first speak with the other parent. If they do not agree, then you must approach the Courts for permission to move. You should not move without written permission from either the other parent or the Court – this could set you up for a very expensive legal battle.
The California Cases of Marriage of Burgess and Marriage of LaMusga are the two primary California cases which deal with move away requests, as is Family Code Section 7501. Below is a lengthy discussion of the process and the legal issues which go into a “move away request.”
The Law Offices of Joseph H. Wolch is a respected California family law firm with attorneys who can help guide and represent you on this important issue. Contact them today for an appointment at www.joewolch.com.
YOU DO HAVE A RIGHT TO MOVE, BUT NOT NECESSARILY A RIGHT TO RELOCATE YOUR CHILD
Courts cannot resolve a move-away dispute by restraining a parent from moving in order to preserve the custodial status quo; such an injunction would violate the parent’s federal constitutional right to travel. (See Marriage of Paillier (2006) 144 Cal. App. 4th 461, 464.) The court must therefore work with the primary assumption that the requesting parent will relocate regardless of the outcome of the move-away request, and make orders accordingly. (See Mark T. v. Jamie Z.(2011) 194 Cal. App. 4th 1115, 1131 – error to deny move-away request on presumption that in doing so court can ensure parent will not move and status quo can thereby by maintained.)
LOOK AT CURRENT COURT ORDERS
The first question is whether you currently have custody orders. If you do, then the Courts look to see the legal and physical custody of the child (for simplicity, I am going to refer to just one child, but the law would apply the same to “children” as it does to a “child”).
Once a judicial custody order is in place, a custodial parent (the parent with physical custody) seeking to relocate bears no burden of establishing that it is “necessary” to do so. Instead, he or she ‘has the right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child.” (Fam. Code § 7501.)
Nothing in the Code requires a parent to remain in the same locality or establish the “necessity” for a relocation as a prerequisite to an award of sole physical custody. (Marriage of Burgess, supra, 13 Cal. 4th at pp. 28-29.) Where a move-away is contemplated, the trial court must consider (among other relevant factors) the effects of relocation on the children’s best interests (Family Code § 3011), but there is no statutory basis for imposing an additional burden on either parent to justify a choice of residence as a condition of custody. (Id. at p. 34;Marriage of LaMusga, supra, 32 Cal. 4th at p. 1072; Fam. Code § 7501(b).)
IF THERE ARE NO EXISTING COURT ORDERS, LOOK AT THE FACTS
If there are no current orders, then this is the court’s “initial custody determination.” In an initial custody determination, the trial court has “the widest discretion to choose a parenting plan that is in the best interest of the child.” (Fam. Code § 3040 (b).) Where there have not been court orders, but there have been de facto custodial arrangements, the court may look to those actual arrangements for a determination of what stability and continuity must be met in making initial custody orders. (See Marriage of Burgess (1996) 13 Cal. 4th 25, 39; see Marriage of Rosson (1986) 178 Cal. App. 3d 1094.) “The paramount need for continuity and stability in custody arrangements – and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker – weigh heavily in favor of maintaining ongoing custody arrangements. (Marriage of LaMusga (2004) 32 Cal. 4th 1072, 1092, quoting Marriage of Burgess (1996) 13 Cal. 4th at p. 32-33 (citations removed).)
Frequent interaction with both parents is considered generally and ideally to be in a child’s best interests. However, when one parent states an intention to relocate a substantial distance away, maintaining frequent and continuing contact is no longer possible. Courts must then “navigate the delta between the ideal and the reality and consider what is in the child’s best interests under the circumstances presented.” (Jacob A. v. C.H. (2011) 196 Cal. App. 4th 1591, 1601.)
The statutory policy promoting “frequent and continuing contact with both parents” (Fam. Code § 3020) does not limit “the trial court’s broad discretion to determine, in light of all the circumstances, what custody arrangement serves the ‘best interest’ of minor children.” Rather, Family Code § 3040 (b) expressly provides the court with “the widest discretion to choose a parenting plan that is in the best interest of the child[ren].” (Marriage of LaMusga (2004) 32 Cal. 4th1072, 1092, quoting Marriage of Burgess, supra, 13 Cal. 4th at p. 34-35; see alsoLester v. Lennane (2000) 84 Cal. App. 4th 536, 594 – no authority requiring that “frequent and continuing contact” criterion always outrank all others.) Further, Family Code § 3020 does not give rise to any preference for or against joint custody or sole custody, so long as it is consistent with the child’s health, safety, and welfare. (See Family Code § 3040; Marriage of Burgess, supra, 13 Cal. 4that p. 34.)
IF THE OTHER PARENT CHALLENGES YOUR PROPOSAL TO MOVE WITH THE CHILD
The other parent has a right to challenge your proposal to move. If the other parent does challenge the move, they must prove to the Court that there would be a detriment to the child if they were allowed to move with you, and that custody should be changed so that they would get physical custody of the child if you move.
Given the importance of stable custodial and emotional ties, in cases where custody has been lawfully acquired and maintained for a significant period (whether de jure or de facto), a noncustodial parent seeking custody bears the burden of persuading the trier of fact that a change in custody is “essential or expedient” for the children’s welfare. (Marriage of Burgess, supra, 13 Cal. 4th at p. 37; Lester v. Lennane (2000) 84 Cal. App. 4th 536, 592.)
The showing required to change custody is substantial. The California Supreme Court has previously held that “a child should not be removed from prior custody of one parent or given to the other unless the material facts and circumstances occurring subsequently are of a kind to render it essential or expedient for the welfare of the child that there be a change.” (Marriage of Carney (1979) 24 Cal. 3d 725, 730.) “A change in custody is ‘essential or expedient’ within the meaning of Burgess … if it is in the best interests of the child.” (Marriage of LaMusga, supra, 32 Cal. 4th at p. 1098.)
The trial court must base the custody determination upon a “true assessment of the emotional bonds between parent and child, upon an inquiry into the ‘heart of the parent-child relationship … the ethical, emotional, and intellectual guidance the parent gives to the child throughout his formative years, and often beyond.” (Burchard v. Garay (1986) 42, Cal. 3d 531, 540.) The probability that the proposed move could be detrimental to the child’s relationship with the noncustodial parent is just one factor to be considered on a move-away request and cannot be relied on to the exclusion of other relevant factors. (See F.T. v. L.J. (2011) 194 Cal. App. 4th 1, 23-24 – error to ignore the child’s need for continuity and stability in established custodial arrangements.)
Also to be considered is the “strength and primacy of the bond” between the child and his or her existing primary caretaker, and also whether the non-custodial parent is adequately prepared to assume primary physical custody of the children. (Marriage of Edlund & Hales (1998) 66 Cal. App. 4th 1454, 1473-74 – mother’s proven ability to care for child full-time and “overwhelming undisputed proof” father not adequately prepared to assume primary physical custody supported granting mother’s move-away request). “The primary focus must be what is best for the child, not what is best for the parents.” (Marriage of Birnbaum (1989) 211 Cal. App. 3d 1508, 1515.)
IF THE OTHER PARENT SUCCESSFULLY SHOWS THAT THERE WILL BE SOME DETRIMENT TO THE CHILD IN MOVING, THE COURT MUST EVALUATE THE MOVE PROPOSAL, APPLYING THE Marriage of LaMusga FACTORS
Regardless of whether the move-away contest arises in an initial custody adjudication (as in Burgess) or a modification proceeding (as in LaMusga), once the parent contesting the move shows detriment to the child from the proposed relocation, the trial court must consider all of the relevant factors in deciding whether a change in custody would be in the child’s best interest. (Marriage of LaMusga, supra, 32 Cal. 4th at p. 1097.)
A showing that the proposed relocation would cause some detriment to the children’s relationship with the noncustodial parent does not ipso facto mandate a change of custody; if that were the case, the primary custodial parent would never be able to relocate with the children. (Marriage of LaMusga, supra, 32 Cal. 4th at p. 1095 – probability that proposed move would be detrimental to child’s relationship with noncustodial parent is just one factor to consider in move-away disputes.)
The factors courts ordinarily should consider in assessing whether the children would suffer detriment from the relocation, and in turn whether custody should be modified, are discussed below:
- The children’s ages;
- The children’s relationship with both parents;
- The distance of the move;
- The reasons for the proposed move;
- The extent to which the parents currently are sharing custody.
- The children’s interest in stability and continuity in the custodial arrangement;
- The relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the children’s interests above their individual interests; and
- The children’s wishes if they are mature enough to make that inquiry appropriate.
CONCLUSION
A contested move-away request typically entails a trial and can take several months from start to finish. However, Courts have granted move aways as far as to Spain and Australia, from California to the Midwest, or just 30 miles away.
A proper analysis of your situation is essential as you decide whether to embark on a “move away request.” The Law Offices of Joseph H. Wolch is a respected California family law firm with attorneys who can help guide and represent you on this important issue. Contact them today for an appointment at www.joewolch.com.
