Following a divorce, one or even both of the parents may find it necessary to change their residence. This may occur because a parent has found a new job, would like to move closer to family so that they can have that additional support structure, or perhaps just to get a fresh start on life. Regardless of the reason, when one parent moves certain legal considerations need to be taken into account.
The first thing to know is that a court will not interfere with your right to live where you choose. If you want to move, you are generally able to do so. The court will, however, determine whether the children will go with you.
In California, a relocation of a parent is often referred to as a “move-away” or “relocation” case. California Family Code §3024 allows the court to require in a custody order that you give at least 45 days notice to your ex-spouse and to his or her legal counsel of your intent to move. If your ex-spouse agrees, then you should have an attorney draft a stipulated order, get it signed by the other parent, and submit it to the court for the court’s signature. If the other parent objects, then you should file a motion with the court to determine the new custody arrangement.
If your order does not contain a notice requirement, you should give notice anyway. The trial courts frown on parents who just move away without giving the other parent an opportunity to seek a court order. In a recent case that I successfully tried for a move-away parent, the other side argued vociferously that my client did not give notice, which they claimed proved that my client was not concerned about the bond between the children and the remaining parent. You are better off not having to contend with that argument.
Who has the burden of proof and what standard the court will apply depends on such factors as whether you have a final order, whether you have sole physical custody, whether you have joint physical custody or a shared parenting plan, and whether the move is being made for the purpose of reducing the other parent’s contact with the children. In some cases, the court must decide whether the move would be detrimental to the children. In other cases the court must decide generally what is in the best interests of the children. But if the court applies the correct standards and burdens of proof, the trial court has wide discretion in deciding whether the children should move.
When it is appropriate for the court to decide what is in the best interests of the children, the court will consider such factors as the children’s interest in stability and continuity; the distance of the move; the children’s age; the children’s relationship with both parents; 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; the children’s wishes, if they are mature enough to make that inquiry appropriate; the reasons for the proposed move, but without second guessing the parent’s reasons to move; and the extent to which the parents currently are sharing custody.
The key California cases are Marriage of Burgess (1996) 13 Cal.4th 25, 51 Cal.Rptr.2d 444 and Marriage of LaMusga (2004) 32 Cal.4th 1072, 12 Cal.Rptr.3d 356. Those cases set forth the rules for California courts considering a move away case.
All move-away cases present challenging legal issues. An attorney with experience in difficult custody issues can help you present the best case possible to protect your interests and look out for your children. Please contact The Wilson Law Firm, A Professional Corporation today.