When people reach a child custody agreement, they often do not anticipate that one of the parents may want to move with the child at a later date. Usually, when a parent wants to move away with a child, it is because of an important life change such as taking a better job or remarrying. The other parent will be understandably concerned that their relationship with their child will deteriorate due to distance. Both parties are usually operating from good intentions, and emotions can run high.

Who Has the Burden of Proof

Sole Physical Custody Cases

If one of the parents has sole physical custody, they should still seek the consent of the other parent to move the child, so the other parent has an opportunity to oppose. If the noncustodial parent does not grant consent, the parent who wants to move the child must seek a court order. This is often referred to as a “move away order.” Having sole physical custody of the child(ren) will be a major factor in the court’s decision when deciding to grant the moving parent’s request to move away.
If a noncustodial parent opposes the custodial parent moving their child, the noncustodial parent has the burden of proof to show:

• The move would cause detriment to the child or
• The custodial parent has a bad faith reason for moving the child

 

California Family Law Section 7501 states,

• (a) A parent entitled to the custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child.
• (b) It is the intent of the Legislature to affirm the decision in In re Marriage of Burgess (1996) 13 Cal.4th 25, and to declare that ruling to be the public policy and law of this state.

If the parent seeking to move the child has a court order for permanent, sole physical custody, the court is usually (though certainly not always) going to grant their request.

Joint Physical Custody Cases

If parents have joint physical custody, the situation becomes much more complex when it comes to move-away orders. In that case, the parent who wants to move with the child has the burden of proof to convince the court that it’s in the best interests of the child.

Effect of Previous Agreement on Burden of Proof

In some cases, the parties may have anticipated a move and signed a stipulated agreement covering that eventuality. If that agreement requires the custodial parent to get the other parent’s consent before moving the child, then

• The custodial parent has the burden of proof to show the move is in good faith, but
• The noncustodial parent still has the burden of proof to show that a move would be a detriment to the child.

Some Factors the Court Will Consider for a California Move Away Order

If a non-custodial parent opposes the child moving away, and the court is concerned the move may be detrimental to the child, the court will consider several factors including:

• The reason for the move such as the economic necessity
• The distance the child would be moving
• The child’s age
• The benefits and detriments to the child
• The relationship the child has with each parent
• The child’s wishes (Older or more mature children’s wishes hold more sway with the court.)
• How much time the child spends with each parent
• The impact of the current custodial arrangement and whether the noncustodial parent is interested in becoming the custodial parent
• The practicality of a change in custody even if the noncustodial parent is interested (For example, is the noncustodial parent constantly on the road for their job, or are they otherwise unable to provide a stable home environment?)
• Good faith (For example, is a parent really moving the child in order to damage their relationship with the noncustodial parent?)

See In re Marriage of LaMusga (2004) 32 Cal.4th 1072 for more details.

What if a Parent Wants to Move the Child Out of the Country?

Should a parent want to move a child out of the country over the wishes of the other parent, a court will look at a move-away order situation very closely. A major practical concern for a California court is whether it can maintain jurisdiction once the child has left the country. Other concerns, of course, include the impact on the child adjusting to a different country and how the non-custodial parent can keep up visitation and a relationship with the child.

Reducing the Effects of the Move
If a court approves the move away order, they will often try to help maintain the noncustodial parent maintain a relationship with the child. For example, the court may order:

• The custodial parent to pay for some or all of the noncustodial parent’s expenses for visiting the child or the expenses for the child’s visits to the noncustodial parent
• The custodial parent to periodically visit California with the child
  Expanded visitation periods for the noncustodial parent when the child is on summer and holiday vacations

Restraining Order Before a Parent Can Move the Child

If you are the noncustodial parent, and you think the child’s custodial parent is thinking of moving the child, don’t wait. Contact a California family law attorney immediately. Your lawyer can then petition the court to restrain the child’s custodial parent from taking the child out of the area until you can have a court hearing.

If your child’s other parent has already moved your child, your attorney can still petition the court to order the return of the child. However, this is a complicated process and it is recommended that you seek the advice of a family law attorney prior to proceeding.

Call Ghazi Law Group for a Consultation

Whether you would like to move with your child or restrain your child’s other parent from doing so, call the top-rated family law attorney at Ghazi Law Group for a  consultation. The judge will have latitude in deciding whether or not to issue a California move away order. This is no time to wing it. Contact Ghazi Law at (818) 839-6644 or email us at contact@ghazilawgroup.com to schedule a consultation. We are located in Sherman Oaks, California, close to Encino, Van Nuys, Woodland Hills, Studio City, San Fernando Valley, and other areas of Los Angeles County.