We live in a mobile society, and people frequently move to a different city or state—or even a different country—for various reasons. But when a divorced or separated parent wants to change a child's residence, the other parent might object. After all, it can be difficult (and expensive) to maintain a strong parent-child relationship when your kid is now living across the state or across the country. Whether you're the one wanting to move or you're opposing your child's relocation, you need to know how California courts treat these "move-away" cases.
Under California's child custody laws, there are two types of custody: "legal custody" and "physical custody." Legal custody concerns parents' rights to make the important decisions on issues like their child's medical care, education, and religious upbringing. Physical custody affects where the child lives most of the time. Within each of these categories, parents may have joint custody, or one parent may have sole custody.
Move-away cases primarily involve questions of physical custody, including whether a parent with sole or joint physical custody has a right to change a child's residence, and whether the other parent can get a change in custody or visitation because of the planned move.
In move-away cases, judges don't decide whether parents may relocate. Adults have a constitutional right to travel and move. Instead, judges are called on to decide whether parents may change their children's residence, and whether their relocation warrants a change in the current custody and visitation arrangements. As with all custody-related decisions, the main focus in a move-away case will be on what's in the children's best interests.
California law clearly states that custodial parents (meaning those with sole physical custody) have the right to change their children's residence. However, that right is subject to the court's power to prevent a relocation that would negatively affect a child's rights or well-being. (Cal. Fam. Code § 7501(a) (2023).)
This "presumptive" right to move with children doesn't apply to parents who share joint physical custody.
Some states require any parent with custody rights to notify the other parent before a planned move. That's not always the case in California. But when judges are issuing custody orders, they may include a requirement that a parent who plans to change the child's residence (for more than 30 days) must give the other parent advance notice by mail (with return receipt requested). If the other parent has an attorney, the lawyer should also get a copy of the notice.
To the extent that it's feasible, the moving parent should give that notice at least 45 days before the proposed change of residence, so the parents will have time to mediate a new custody agreement (more on that below). (Cal. Fam. Code § 3024 (2023).)
Whether you're planning to move with your children or concerned about how your co-parent's planned relocation will affect your relationship with the kids, you always have the option of trying to agree on a change to your current custody or visitation arrangements. Agreements avoid expensive and time-consuming court battles. They also reduce stress on everyone involved (especially the kids).
You can seek help from a qualified mediator if you haven't been able to reach an agreement on your own. In fact, California law requires mediation of any legal dispute over custody or visitation, including a dispute that comes up because of a parent's planned move. (Cal. Fam. Code § 3170 (2023).)
Once you've agreed on a new parenting plan, you'll need to submit the agreement to the court so it can be part of an official custody modification. But judges usually approve these agreements as long as they appear to be in the children's best interests.
Whenever parents want to change existing custody or visitation orders because of a planned relocation, they'll need to file a motion (written legal request) for a modification with the court. And unless they've agreed on a modified parenting plan, a judge hold a hearing and make a decision.
The standards for making that decision will depend on whether the moving parent has sole physical custody or shares joint custody with the other parent.
As mentioned above, parents with sole physical custody have a presumptive right to move with their children, unless the relocation would be detrimental to the kids. That means that a noncustodial parent who opposes a custodial parent's planned move must first convince the judge that the proposed relocation would be detrimental to the child's welfare. Only then will the judge reevaluate the existing custody arrangement to decide if a modification would be in the child's best interests.
When a parent with joint physical custody wants to move with a child, the judge will approach the issue of custody as if for the first time ("de novo," in legalese). So if the planned move would affect the existing parenting plan, you'll need to seek a modification. But you won't need to prove that there's been a substantial change in circumstances or that the child would be harmed by the relocation. You simply have to prove that the modification is needed to serve the child's best interests. (Cal. Fam. Code § 3087 (2023).)
The California Supreme Court has laid out basic guidelines for judges to follow when they're deciding whether to change existing custody orders in light of a parent's proposed relocation. (In re Marriage of Burgess, 13 Cal.4th 25 (Cal. 1996); In re Marriage of LaMusga, 32 Cal.4th 1072 (Cal. 2004).)
The judge should consider all of the relevant circumstances, including:
As far as the reasons for the move, California courts have consistently held that parents who plan to relocate with their children do not have to prove that the move is necessary. But that doesn't mean a parent's motivations are always irrelevant. For instance, the judge may consider whether a parent is trying to frustrate or limit the other parent's contact with the child by moving far away.
Note the the issue of the child's need for stability can cut both ways. It can work in favor of a custodial parent who wants to move with a child, because the child is used to living with that parent. But particularly when parents have been sharing physical custody, older children's ties to school and community can sometimes matter as much—or almost as much—as which parent they live with most of the time.
It's important to remember than when it comes to any disputes over child custody—including a planned relocation—parents shouldn't get caught up in "winning" or "losing." The goal should be to reach an outcome that best ensures the children's well-being, not a victory for one parent over the other.
That's one reason it's always worth it to try your best to reach an agreement, either on your own or with a mediator's help. But if that's not possible, you almost certainly will need the help of an experienced family law attorney to gather the kind of evidence necessary to convince a judge of your position, including:
Because judges will consider the parents' relationship with each other and with their child, there are some things you can do to bolster your position on a proposed move, including the following:
As a practical matter, a relocation that's relatively close to the moving parent's current residence isn't usually likely to warrant a change in custody. Especially when the moving parent has sole physical custody, it could be hard for the other parent to show how a child would suffer from a relocation to the other side of the city or a nearby town. Still, that argument might work in some situations. For instance, a relatively short move that requires a change in schools might be detrimental for a special-needs child who couldn't handle the disruption and can't get needed services at the other school.
Most of the problems in relocation cases arise when the move involves a significant distance, whether to another part of the state, a different state, or even a foreign country. California has a public policy of ensuring that children have frequent and continuing contact with both parents after the parents have separated or divorced. (Cal. Fam. Code § 3020(b) (2023).) So a long-distance relocation that impedes that contact could be problematic. But that doesn't mean judges will always change custody in these cases.
When judges do allow parents to move far away with their children, they'll usually try to ensure that the left-behind parents will have ample opportunities to visit with the kids and maintain their relationships. In addition to regular video calls, that might mean longer visits during summer vacations to make up for the expense and difficulty of more frequent in-person visits.