Move-Away Requests and Orders
A request for move-away order in California typically arises when one parent wants to move out of state due to a new job opportunity, a new serious relationship (getting married), or caring for a sick parent.
According to California Family Code section 7501, a custodial parent has the presumptive right to change residences or move neighborhoods with a child, unless that move directly interferes with the child’s rights or best interests. However, a parent planning to move with the child must first provide written notice of any plan to move away with the child for more than 30 days, unless a prior written consent has already been given.
If one parent does not agree for the child to move, the parent who wants to move with the child must seek the Court’s permission for the move and “must show” the court that the move is in the best interest of the child. Typically, the child’s best interests include “continuous and frequent contact with both parents ”The parent who is relocating does not always have to prove to the court that the move is necessary. Instead, it is up to the objecting parent to prove to the court that the move would be detrimental to the well-being of the child in question, or that the parent wanting to move away has made the decision in bad faith.
In deciding whether to grant a move-away request, the court will consider the factors discussed in the case, Marriage of LaMusga (2004) 32 Cal.App. 4th 1072. These factors include:
1) the reason behind the move; 2) health, safety and welfare of the child;
3) how far away the move will be,
4) the age of the child,
5) the relationship shared with the other parent,
6) the child’s wishes may be considered if the child is of a mature enough age,
7) stability and continuity of the custodial parent or the parent who cares for the child at a higher percentage of time, and
8) the time spent between the child and the other parent.
A move-away request or order does not automatically modify the existing visitation orders. In cases where the parents share joint custody and the other parent can prove to the court that a move would be detrimental, the court then must decide if a change in custody would be in the best interest of the child.
In some cases, parents are able to agree on the relocation of the child. If the other parent agrees to the move, the parties can enter into a written agreement (joint stipulation) and submit their agreement to the Court for approval (an Order). Once the Court approves the agreement, it becomes a Court Order. Parents who enter into a move-away agreement are advised to seek legal advice to ensure that the agreement provides an adequate visitation plan.
In most cases however, both parents want to be involved in their children’s lives and this situation causes difficulty in coming to an agreement for a move. Due to this, and with the majority of cases, the only other option for the moving parent is to request the assistance of the courts.
When an agreement cannot be made and the parent moving away does not successfully get an order from the court, a relocation of the child in violation of the Court’s Order should never be done. The penalties for relocating with a child without the other parent’s permission or a Court Order can be severe. If a parent moves without prior permission or a Court Order, it may be considered a deprivation of the other parent’s rights regarding custody or visitation. The parent making the move could face criminal penalties and fines for child abduction under California Penal Code Section 278.5.
Whether requesting a move-away order, or objection to a move-away motion, it is a good idea to consult with an experienced family law attorney who can provide sound legal advice in this area of law and practice.
The views expressed in this article do not contain legal advice, may not be current and is subject to change without notice. The information contained herein is provided for general information and educational purposes only and is not a substitute for professional advice. Should you need legal advice, contact Simon Law directly and request to speak to an attorney at law regarding your case.