Often, after a separation or divorce, parents decide to move because they can no longer to afford to live in the same city, for a new job opportunity, or so they can be closer to extended family for financial or emotional support. Whatever the reason, when a parent wants to move, difficult decisions have to be made regarding where the children will live and how the other parent will maintain a relationship with them.
Sometimes, divorced or separated parents can agree on where their children should reside and what the visitation arrangements will be. Many times, however, these situations are emotionally and logistically difficult, and parents can't agree. It will then be up to a court to decide.
The move-away laws are complicated and confusing, and there are many factors involved in the outcome. The purpose of this article is to give you a general overview of how a move-away case proceeds in court, and what a judge will consider when making this difficult decision.
If you are on either side of a possible move-away, you should contact a family law attorney that is experienced in child custody cases.
In California, when parents separate or divorce, a court will issue orders for custody and visitation arrangements based on what is in the best interest of the child. In general, the goal of a custody order is for both parents to maintain frequent and continuing contact with their child(ren).
The court may decide that parents should have joint custody, which means that the child will live with both parents almost equally according to a set schedule, or the court can order that one parent has sole custody, so that the child lives mostly with one parent, and that parent has responsibility for the day-to-day care of the child. In general, when there is a final custody order in place, the order can only be modified (changed) if there is a significant change of circumstances making a change in custody necessary for the child's well-being.
A “move-away case” arises when a parent that has joint or sole custody of the child decides to move to a location that is far enough away to disrupt the current custodial arrangement. Whether the move is 30 miles away or 3000 miles away, if the move will impact the current custody situation, the parents will need new custody and visitation orders.
When a divorced parent wants to move away with a child, one of the parents files a motion with the court for new custody orders. The moving parent might file for permission to move with the child, or the other parent might file a motion for a change of custody so that the child can stay.
Before this issue goes to a judge, the parents must mediate the issue to try and reach an agreement about where the child will live and what the visitation arrangements will be with the other parent. If the parents can't agree, then there will be a hearing for the court to make new orders.
It is important to remember that in a move-away case, the court does not decide whether the parent can move-- people have a Constitutional right to move and the court can't prevent them from doing so. Instead, the court has to decide whether the child should move with that parent and, if so, what the visitation arrangement should be.
The court's approach to these decisions depends on whether the moving parent has sole custody of the child, or whether the parents have joint custody:
Joint Custody: If the parents have joint custody, there's no need to show changed circumstances for the court to change the custody order. Instead, the parents come to court on an even playing field, and the court will hold an evidentiary hearing to make a new custody decision based on the best interests of the child.
Sole Custody: A parent with sole custody has a “presumptive right” to move with the child. This means there's an assumption that the parent and child can move. Before the court can consider changing the custody order, the other parent has the burden to show that the move would be detrimental to the child, creating a change of circumstances and requiring a reevaluation of the custody order.
Showing detriment can be difficult. Although the harmful impact the move will have on the relationship between the child and the non-moving parent is an important consideration, this factor alone may not be enough to establish a detriment. If the parent is able to make the initial showing that the move will be harmful to the children, then the court will have a hearing to reconsider the custody order and determine whether a change in the order is in the best interests of the child. If the parent cannot show a detriment, the child will be allowed to move.
At the formal evidentiary hearing, the judge will examine evidence and hear live testimony. Parents, child custody evaluators, and others with relevant information regarding the child's best interests may testify. In some cases, the child may testify. California law requires that the court consider a child's wishes as to custody and visitation if the child is old enough and mature enough to make an intelligent preference. Children 14 years of age or older must be allowed to testify if they want to, unless the court finds that it is not in their best interest. Children under 14 years of age may also give their preference if the court finds that it is appropriate.
A child's testimony may be taken in open court. However, many courts prefer to get information regarding a child's preference by having a mediator, evaluator, or other professional talk with the child and bring the information to court, so that the child doesn't have to go through the trauma of appearing in court and basically choosing one parent over the other.
At the hearing, the court will look at evidence related to the following factors:
In sum, move-away cases are complicated and challenging, and there are no clear-cut rules to guide the court in making the decision. The goal is to create an arrangement that will be best for the children and allow them to have a continuing relationship with both parents, even when there is distance between them.
The law regarding move-away cases is found in California Family Code sections 3020, 3087, and 3185. There are also many published court decisions related to move away cases, including:
In re Marriage of LaMusga (2004) 32 Cal.4th 1072
In re Marriage of Burgess (1996)13 Cal.4th 25
In re Marriage of Brown and Yana (2006) 37 Cal.4th 947