Court-ordered custody agreements can last for many years, especially if both parents live nearby. However, these "move-away" situations can be challenging because they usually involve a clash between the rights of a custodial parent to relocate freely and the rights of both the non-custodial parent and the minor to maintain their contact.
Understanding the Child Custody Orders
Knowing some of the fundamentals of child custody regulations is essential to understanding the challenges involved in move-away disputes. When parents choose to split, they should establish legal custody plans that serve the children's best interests. Custody orders could also be filed by unmarried parents who are separating or have never cohabited.
Child custody agreements involve both physical and legal custody. In most jurisdictions, joint legal custody is the default option for parents, which means they mutually decide on matters crucial to their children's well-being, education, and health. Physical custody typically applies where the minor spends most of his or her time. However, joint physical custody is also becoming increasingly popular so both parents can spend considerable time with their loved ones.
If parents cannot concur on custody (also known as a "parenting plan"), the court would decide the matter for them. The court would issue a legal custody order specifying how the parents would split custody rights and obligations, regardless of whether the custody agreement results from a magistrate's decision or the parents' arrangement.
Primary Custodial Parent
Even if parents have joint physical custody, one is usually designated as a primary custodial parent. For instance, in a regular joint custody arrangement, the minor is likely to spend some holidays, the weekends, and at least a few school vacations with the non-custodial parent while spending weeknights at home with the primary custodial parent.
Joint Custody Arrangement Adjustments When a Parent Relocates
Parents can plead with the judge to amend current custody arrangements, but they often need to provide evidence of a significant change in their circumstances to support the change. The court will determine whether the alteration would serve the minor's best interests, as he or she does with all custody-related decisions. New custody agreements between the parents can be reached amicably, but the court would approve the settlement before it can become a part of the new arrangement.
When a primary custodial parent intends to relocate with the minor, the other parent could seek a custody change, such as an adjustment in the visitation arrangement or primary physical custody. Furthermore, parents who share joint custody but do not hold primary custody could ask for a modification to the current parenting schedule due to their planned relocation. If the move severely impedes one parent's right to maintain a close bond with their child, the judge would view it as a significant change of circumstances.
When Custodial Parents Need Authorization to Relocate With a Minor
Custodial parents often need approval—from a court or the other parent —before they can relocate with a child outside the state or a specific distance from their current address. These limitations are often set up in state legislation. Other times, they are contained in custody rulings or temporary restraining orders granted in a divorce case.
Relocation Limits in Custody Agreements or Orders
Even in jurisdictions where the law does not explicitly need authorization before relocating with a minor, magistrates in some states could include similar limitations in custody orders or divorce rulings. When parents agree and sign the legal divorce settlement, which contains their commitments regarding child custody and co-parenting, the settlement is usually incorporated into their divorce ruling.
However, if the settlement contains clauses regarding what will transpire if the non-custodial spouse relocates with the minor, those clauses would not affect the outcome of subsequent legal actions if they infringe the state laws. For example, if the agreement asks for an automatic adjustment in custody without needing a magistrate to establish that the adjustment would be in the child's best interests.
Temporary Restraining Orders in Divorce Cases
The court usually issues "temporary restraining orders" once you file for a divorce to keep things as they are regarding both parents' rights to the child. These TROs often forbid one parent from relocating a minor out of the state without the other parent's consent. TRO requests are usually made by one or both of the partners. However, in some jurisdictions, regular TROs take effect right away after a partner files for a divorce.
For example, one of the primary divorce documents, the summons, must include the automatic temporary restraining order (ATRO). This forbids either partner from taking their minor out of the state or filing for a passport on their behalf without the other partner's written consent, advance, or a judge's order.
Consequences of Relocating a Child Out of State Without Permission as a Custodial Parent
Parents who relocate their children against the law or a court ruling risk facing serious repercussions, such as:
- Contempt orders.
- Hefty fines.
- Serving time behind bars.
- Both parents will lose primary custody if the other legal parent files a custody adjustment based on the relocation.
- Criminal prosecution, like parental child kidnapping or abduction.
If you intend to relocate or simply travel with your minor, be sure you understand whether you will need authorization. For more information on any requirements, review the custody order (which could be part of your divorce ruling). Additionally, if the divorce proceeding is still pending, carefully evaluate all the documents to determine if they contain any restrictions on where you can move or go on vacation with your kid.
Can Parents Accept a Planned Move With Children?
Suppose a noncustodial parent agrees to the relocation of the custodial parent. In that case, the two parents could also decide on a new custody plan that takes into account the new location and gives the noncustodial parent adequate time with the minor. Both individuals will have to sign a legal contract called a stipulation.
However, changing custody still requires judicial approval, even if both parents consent. The magistrate will issue a new court order if the judge finds that the arrangement is in the child's best interest. When parents fail to agree, they could employ a custody mediator or a co-parenting counselor to assist them in coming up with a decision that benefits both of them as well as the minor.
If that is unsuccessful and state provisions or the current custody agreement calls for a judge's approval, the intended move would have to be halted. In that situation, the parent who is moving should appear before the court and submit formal documentation requesting that the court approves the request to move out of state.
How Judges Make a Decision on a Custodial Parent's Request to Relocate
Judges need to adhere to state laws in all child custody cases when considering whether to approve a custodial parent's appeal to relocate with a child or accept the non-custodial parent's petition to change the existing custody agreement. The specific facts the court should take into account will rely on the jurisdiction where you had your divorce or custody order because state rules on child custody and relocations vary significantly.
In general, courts will consider the potential advantages and drawbacks of the relocation in light of the minor's best interests. For instance, a planned relocation could improve a child's general quality of life due to the following:
- Increased earnings for the custodial parent as a result of a new employment opportunity or quality education opportunities in the new jurisdiction.
- Closer access to the parent's relatives, who can offer support and assistance with childcare.
- The child could benefit from the privileges of a two-parent home as a result of the custodial parent's marriage.
On the other hand, the judge would take into account any potential adverse effects of the intended relocation on the minor's well-being, especially the reduced interaction with their noncustodial parent.
The rights to relocate with a minor with a custodial parent varies depending on the state. In certain states, the law assumes that the parent who has custody of the child can move the child except if the other parent can show that the action would hurt the child's wellbeing. In some states, the parent wishing to relocate should demonstrate that doing so is in the child's best interest. Other states, nevertheless, don't sway the odds against or in favor of the relocating parent.
Certain state laws further specify the particular elements that judges take into account when determining whether to let a parent move with a kid or if they should accept the other parent's claim to adjust custody as a result of the relocation. Often, these elements consist of:
- If the parents do have the financial means to support long-distance visitation, as well as how the transfer will affect the child's capacity to continue having a close, lasting relationship with their other parent regardless of the distance.
- If the parent with custody has a legitimate reason for wanting to move or is only attempting to impede the other parent from spending time with their child.
- The reasons behind the non-custodial partner's objection to the move, such as if they are sincerely worried about the possible damage to their parent-child connection or are just trying to have child support reduced.
- The importance of consistency in the minor's other interactions, like those with others at school, in friendship groups, as well as in religious settings, and
- Custody decisions that are based on the minor's wishes if they are old enough to have an informed opinion on the matter.
What Happens If a Non-Custodial Parent Wants to Relocate?
Except if they want to move with their child, noncustodial parents don't need the court or the other parent's permission to relocate.
However, if a noncustodial parent moves, do their visitation rights also end? Generally speaking, no. Whether or not the current visitation and custody arrangements can be maintained after the relocation is a matter for the courts to decide, but the parents are required to comply with the orders.
Suppose a custody arrangement is no longer in the best interests of the kid or is causing undue hardship for the family. In that case, the court will not expect compliance from either the child or the custodial parent.
Consider the scenario where your custody agreement grants you weekend visits (parenting time) with your kid every second week. You can undoubtedly stick with that plan if you move 45 minutes away since it won't disrupt or harm your child.
You must take action before leaving. Otherwise, you risk losing contact with your child or children. This is especially true if your intended relocation would be so far away that it'd be impractical or extremely difficult (or costly) to keep the existing parenting time agreements.
Suppose you are a noncustodial partner who intends to move. In that case, you must first consult the parent with the custody of the and aim to negotiate a new, favorable parenting time arrangement. You can ask the court to approve your written arrangement when you've reached an understanding. The court will typically allow the agreement provided it serves the child's best interests.
You will need to submit a petition to the judge to revise the order when the custodial parent refuses to consent to a modification of the current custodial and visitation schedule. You need to establish a comprehensive visitation plan well in advance of the court proceeding. This plan should cover how you, along with the other party, will manage transportation costs and communication (for example, consistent video calls).
When a new visiting arrangement is in the child's best interest, the court will review the matter, including the factors that led to the move.
If following a move, neither spouse can provide consistent access to their children on weekends or during regular visitation hours. Courts often give the noncustodial parent more time with the child during school breaks, holidays, and summer vacations. Parents should realize that both of them must abide by current orders until they have reached an agreement (in writing) on a different arrangement.
Can You Move Your Child Out of State If There Is No Custody Order or Agreement?
If you reside with your child/children, you and the noncustodial parent are not married, and no custody proceedings have been initiated, you are allowed to relocate with the child. But remember that regardless of marital status, both parents enjoy parental powers over their kids, irrespective of whether the court orders it.
This means that if you are a single father and relocate with the child, the mother could file a court case to prove paternity (parentage) and request visitation or custody, particularly if she has been interacting with your child frequently and wishes to continue seeing them.
Taking or keeping a child outside the country without permission from the other parent could create legal complications, so be conscious of the risks before you do this. Consider the following scenario: your daughter has been residing in the United States, and you decide to move them to a different country that's a Hague Convention signatory.
In this situation, your ex-partner could initiate legal action to recover the child. The "Hague Convention" situations sometimes occur when couples have problems, and either parent decides to consider getting a divorce while taking the children to live with relatives abroad (or keeping them there for longer than the intended visit).
How Can I Win A California Move-Away Case?
When making decisions, the courts will carefully consider all relevant criteria as they are supposed to represent the child's best interests. You must demonstrate that the relocation won't harm your child for the court to grant a moving order.
This frequently entails demonstrating that any changes to your child's visiting arrangements with their other parent won't have a detrimental effect. Your case may be strengthened if you show that the minor can still communicate with the non-custodial parent and that this won't affect their relationship.
How Far In California Can I Relocate When I Have Joint Custody?
Parents often have to move because of their needs—well-being, changing careers, or financial constraints. But, if you want to relocate inside the state of California, your visitation schedule and custody arrangements will likely have to be significantly modified.
The opposing parent can argue that relocation will negatively affect the child's development or visitation privileges. In some cases, this could lead to one parent gaining sole physical custody of the child while the other loses that right.
Can I Take My Children On Vacation Outside California Without Obtaining A Move-Away Order?
When you can agree on the terms of custody and visitation, move-away orders could be avoided. Certain parenting agreements restrict taking a kid out of the nation or state. When the parenting arrangement specifies that parents should agree before the child leaves the state, you'll be required to talk to your ex about the situation.
Additionally, you should check that your former partner's visitation schedule does not conflict with the periods the child is away. If the other party cannot be reached, you might have to ask the court for permission to remove the child from the state temporarily.
Contact a San Diego Family Law Lawyer Near Me
If you and your former partner are unable to agree on moving a child out of state, you will most likely need to contact a skilled family law attorney to guide you throughout the legal procedure. Move-away proceedings are among the most complicated custody battles.
Given how much is on the line, you ought to get assistance from a qualified professional who can stand up for your interests and rights. San Diego Family Law Attorney is committed to handling all cases involving minors with the utmost discretion since we know how emotionally charged they can be. Call us at 619-610-7425 for assistance with San Diego move-away orders.
