You have just been served with legal documents that contain a court date and a move away request by the other parent. Your initial reaction may be panic. You may feel betrayed and angry. No matter what your emotions, it’s time to focus. Your children’s future with you may be at stake, especially if the other parent intends to move a long distance such as out of the state or country.
Not every move away requires a court order and, under certain circumstances, a custodial parent is presumed to have a right to move with the children even without a further order of the court. That is why if you suspect the other parent intends to move or even if you have received informal notice of an intended move, you should act quickly and talk to a trusted family attorney.
What Happens if a Move Away Request Has Been Filed?
The following is a helpful guide in cases where a formal move away request has been filed with the court and there is a court date approaching. This guide serves as a starting point only in such a situation. This article is not legal advice, is not a substitute for legal advice nor is it intended to be specific to your case or facts.
Showing Detriment to the Children
If you are the noncustodial parent and there has been a final custodial adjudication, California law generally requires that you show the move will be detrimental to the children. This is all before the court will evaluate whether the move is or is not in the children’s best interest.
Persuasive evidence that shows detriment will help a noncustodial parent get over the initial burden in opposing a move away.
Parents who are legally required to show detriment may not realize the initial burden is on them. Similarly, parents may mistakenly believe that their custody order is a final custodial adjudication when it is not or that they need to show detriment when they do not. Even a custody judgment may not be a final custodial adjudication in certain circumstances. That is why it is important that you do not assume that you have a final custodial adjudication or whether or not you have to show detriment and you seek the advice of an experienced California child custody lawyer on the issue.
Understanding the "Best Interest of the Children" Standard
If there was a final custodial adjudication and you were able to show detriment, the court will move on to the best interest standard. If there was no final custodial adjudication, the court will skip detriment and start with the best interest of the children. Regardless of how you get there, you have to know what the best interest of the children really means to the court to know how to advocate your position.
The definition of best interest permeates every aspect of the children’s health, safety, education and general welfare. It includes the children’s relationship with each parent, providing for their necessities of life (such as food, shelter and clothing), stability and predictability of the children's life, the fitness of each parent to care for the children, the children’s academic performance as well as emotional well-being and each parent’s willingness to facilitate co-parenting and communication with the other parent.
In a move away case, your goal is to persuade the court that the proposed relocation is not in the children’s best interest. Consider the following:
- Where will the children go to school? How does that school rank in relationship to the current school they attend?
- What support system will the children have at their new proposed new home? How does that compare to the support system they currently have?
- Is the city and area the children will live if the move away is granted a safe one?
- Is the proposed move a transitional one (one that will likely precede another)?
- Has the other parent planned poorly for the move? Are there details of the move that are unknown and won’t be known until after the move takes place?
- Does the other parent have a history of the domestic violence, substance abuse or child endangerment, such that a move with that parent could expose them to further harm?
- Does the other parent had a history of failing to co-parent or communicate and a failure to facilitate the children’s relationship with you? Will the move exacerbate that?
All of these things and more will factor into the children’s best interest analysis when evaluating the move away.
To learn more about the best interest of the child standard, see our section on, Best Interests of the Child.
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