Relocation or a move-away, as it pertains to child custody issues, can be described as a situation where the parent who is the primary physical custodian seeks to relocate the child to a new place that is not within their current city, county, state, or country. A move away case is among the most intricate cases in family law irrespective of the distance of the intended relocation. As such, it is not wise to go ahead with a relocation case without the assistance of a knowledgeable relocation attorney. It is at such a time that you need to consult with San Diego Family Law Attorney to receive the appropriate guidance. Regardless of whether you are the parent that intends to move away with the child or you are the parent seeking to stop the relocation, you can rely on our expertise and knowledge to achieve the best possible outcome.
Under California Family Code Section 7501, you have the right to change the residence of your child if you have the primary physical custody of your child. However, without the order of a family law court or the consent of the child’s other parent, you are not allowed to change your child’s home or residence. The California Supreme Court has in recent years allowed family court judges the option to negate relocation requests if they believe that it will predispose the child’s rights and welfare. Therefore, this decision by the Supreme Court together with California Family Code Section 7501 makes it difficult to relocate your child if you are the custodial parent.
It is worth noting that every relocation case is evaluated and determined based on its specific circumstances. This means that there are a variety of factors that will be deliberated on prior to the determination of whether a relocation order will be granted or denied. Your end-result of your case will mainly depend on the judge that your case is assigned to as well as the specifics of your case. In this regard, seeking legal counsel of a San Diego Family Law Attorney will be the best course of action. We have extensive experience dealing with such cases and we understand how different courthouses in California work. For a free initial consultation, contact us today at 619-610-7425. We will get through this together.
Understanding Child Custody Arrangements
There are numerous types of custody provisions available in California. Your ability to relocate is, therefore, highly dependent on your particular arrangement. When both parent exercise equivalent authority in key decision-making on matters concerning their child, the arrangement is referred to as a joint legal custody. Conversely, when both parents get to be with the child for a roughly equal time, the arrangement is known as joint physical custody.
In the case that one parent has the exclusive authority in making decisions for the child, the arrangement is referred to as sole custody. In a sole custody, the child’s primary place of residence is the home of the parent granted the custodial rights and the other parent can only hope to get visitation rights. A parent who only gets visitation, with no decision-making authority on matters that concern the child is known as a non-custodial parent.
There are no relocation restrictions for a non-custodial parent. Nonetheless, he or she may not take the child with them. Furthermore, certain custody arrangements do not allow non-custodial parents to move with children over state lines. This is determined by past accounts where the non-custodial parent has been known to interfere with custodial arrangements, has supervised visitation only or has been accused of child abuse. In this case, if the non-custodial parent wants to visit the child, he or she must go back to California. The family court can give parents fresh custody bargains and amend agreements touching on visitation if they wish to.
Joint Custody Relocation
Relocation can greatly alter the schedule of visitation in a joint custody arrangement. When the parent with the primary physical custody of the child wishes to move away in a joint custody arrangement, he or she is required to file a relocation request with the court. In the petition, the parent ought to clearly outline the motives for the relocation. At this point, the non-custodial can oppose the request but it will then be left to the judge to decide whether the child’s best interest will be served by the relocation. If it won’t be in the child’s best interest, the court will issue a ruling preventing the primary custodial parent from relocating with the child. In a joint physical custody arrangement, either parent is allowed to apply for a move-away but this should not interfere with joint custody arrangements. In most cases, judges will give new parenting strategies in order to ensure that parental rights are preserved while still permitting the relocation.
Sole Custody Relocation
In California, there are no laws that restrict a parent with sole physical custody from moving away. However, parenting plans and custody orders may have specific requirements that limit or prohibit relocation. Parents are supposed to follow what their custody provision dictates. If the custodial arrangement does not touch on the issue of relocation, the parent must file a relocation request with the court, especially if the other parent does not approve of the relocation. Since the relocation is not bound to dramatically interfere with the child’s life, the judge may be persuaded to grant the petition. The judge may, however, include an order protecting the visitation rights of the other parent and this may require the parent who relocates to cover the expenses when the child visits the non-custodial parent.
It is worth noting that if you are planning to relocate to another country, it may not be as easy to obtain a move-away order. If the non-custodial parent or non-moving parent has a strong bond with the child, they may use that as a point to prove that the relocation would interfere with the relationship and continuing contact with the child, thus being detrimental. While cases of custody and relocation always create complex legal issues, it would even be more complex if your case involves relocation to another country.
Also, the orders may pose even greater problems for the courts because they must consider the ability of the non-moving parent to visit the child and preserve the relationship with the child, how the new culture may affect the child, and the obvious problem of retaining the jurisdiction of California courts in matters of custody, visitation, and support. In this case, it is advisable not to attempt to obtain an international move-away order without the help of a seasoned child custody lawyer.
Framework of Move-Away Disputes
If both parents are not in agreement, the parent who wishes to relocate must seek the court's consent before doing so. Different courts have made differing determinations on the issue of relocation, especially given that the laws on this complex subject are constantly evolving. Generally, relocation cases are determined using the analytical criteria below:
- If there exists no custody order yet, or the previous order was a provisional one, it is upon the court to decide what arrangements will be in the child’s best interest
- If there is a permanent or conclusive order in existence, the current type of custody plan will determine the legal standard that the court will use in making the decision
- In situations where the parents have a joint physical custody, the decision is made depending on the child’s best interest
In circumstances where one parent has the physical custody, the court may find it easier to grant the consent to relocate with the child. The non-custodial parent may be able to stop the relocation if they can demonstrate to the court that:
- The motives behind the relocation by the custodial parent are not sincere. For instance, it could be that the custodial parent is trying to minimize the time the child spends with the non-custodial parent
- The relocation would be unfavorable to the child. In this case, the court ought to evaluate the consequences of the relocation to the relationship between the other parent and the child.
What the Court Considers when Deciding on a Move Away
There are a number of factors that the courts will consider in determining whether or not to grant a move-away request:
- The reason for the intended relocation,
- The child’s age,
- The relocation distance,
- The current custody arrangement
- The child’s continuity and stability in the custodial arrangement
- The relationship the child has with both parents
- The relationship between the parents and their ability to cooperate and communicate properly and whether they are willing to abandon their own interest in favor of the child’s interests
- The wishes of the child if he or she is mature enough to make reasonable decisions
- The ties that the child has with the community,
- The court must establish between the two parents, the one with the highest likelihood of encouraging frequent and continuing contact with the other parent,
- Both the educational and health needs of the child and
- The child’s circle of friends
Process of Evaluating Move-Away Disputes
It is common for parents to allow the court to order a custody evaluation if they cannot agree on the issue on their own. A custody evaluation is carried out by mental health professionals such as a psychologist. Typically, the custody evaluator will look into the proposed custody proposals submitted by both parents. This process proceeds in several stages and over a certain period of time, in most cases, three months, but it can be shorter or longer than that. It is common, though not mandatory for the process to include interviews of the child, interview of both parents, interview of third parties such as teachers and family friends, psychological testing of parents, home visits, and review of reports and documents. When it comes to giving move-away orders, courts may rely on the evaluation report and its recommendations.
Strategies for Parents in a Move-Away Dispute
For custodial parents who are planning to move:
- Notify the noncustodial parent of your contemplated move with a written notice. This should be done in advance and not just a month or 45 days. In some cases, it may even be enough to issue a several months’ notice. It is important to note that the courts are congested and it may be impossible for your case to be resolved at the first hearing. Make your plans properly and well in advance
- Ensure that your intended relocation is not out of spite. While you may be moving in good faith, that fact will not be significant in the court’s analysis. What the court will consider is whether or not the relocation is made with the specific intent of interfering with the other parent’s custodial time
- Propose a new custodial plan that allows the other parent frequent and continuing contact with the children after the move. This may include consideration of the distance of the contemplated move, substantial time in summer offering to cater for the expenses such as airfare, and any other effective compromises that allow the child and parent to spend time together
- File your own Order to Show Cause before the other party does so. Also, be in a good position to show that your income level will at least stay the same
For the non-custodial or non-moving parent
- Ensure that you have exercised all the custodial time that has been ordered to the maximum. This means engaging in the child’s extracurricular activity, go to doctor’s appointments, meet teachers, etc.
- Exercise all your visitation rights and break the plans only when necessary.
- If the custodial parent notifies you of the contemplated move, ask for a thorough custody evaluation and file an Order to Show Cause. If the move is in the offing, ask the court for emergency orders to block the relocation of the child.
- Even after filing the necessary request with the court, you can still make compromises with the other parent, which involves coming up with a written agreement that should be filed with the court for it to be legally valid.
Contact a Move-Away Attorney Today
Legal matters involving custody and relocation are very complex and the law can be very confusing. It can especially be frustrating if both parents want to remain significant in the child’s life. At San Diego Family Law Attorney, we understand the sensitivity of cases involving children and we are dedicated to handling the case with utmost care. To get help with move-away orders in San Diego, please contact us anytime 24/7 at 619-610-7425.