Can I move my child out of the State of California? The county? The country?
In California, cases involving the movement of children are known as “move-away” cases, and are generally complicated. There are many statutes in the Family Code and case history which can provide guidance to those either attempting to move their child away or trying to prevent such a move from occurring. This article will touch on some of those topics.
1) The Court cannot prevent YOU (the parent) from moving.
Under the United States Constitution, all adults are permitted to freely travel and move about the country. Therefore, the Courts cannot resolve a move-away dispute by restraining a parent from moving. However, the Court can make Custody decisions about your child based on the assumption that you (the parent) are going to move. (Marriage of Paillier (2006) 144 Cal. App. 4th 461, 464).
2) What happens if no Custody Determination has been made at all.
If there has been no determination of who has custody of the Children and one parent wants to make a move away with the child, or prevent such a move from occurring, that person will usually file a Motion with the Court to start or stop the move. In California, this is done with a Request For Order.
When the Judge is making a determination under these facts, they will follow what is known as the “best interests of the child” standard. This is the same standard used in making ANY initial custody determination. The Court will look at ANY relevant factors when determining what is in the child’s best interest. This will INCLUDE any proposed or planned move. However, the Court will look at the move as it relates to all factors in the child’s best interest, including:
The health, safety, and welfare of the child;
Any history of domestic violence or child abuse by either parent;
The existing nature and amount of contact with both parents;
Any existing history of drug or alcohol abuse by either parent;
Any physical disability of either parent;
The child’s preference applies if the court finds that the child is of a sufficient age and capacity to reason and can form an intelligent preference as to custody;
The employment and ability of both parents to properly care for the child.
3) What if there is a Temporary Custody Determination in place?
If there is a temporary custody determination in place, the Court will use the same “best interests of the child” standard as described above. Even if there is a “temporary” or “stipulated” award of custody to one parent, the presumptive rights discussed below will not apply (and the “best interests of the child standard” will prevail) until custody is awarded by way of a “final judicial custody determination” (F.T. v. L.J. (2011) 194 CA4th 1, 19-20). One example of a final judicial custody determination is if there has been a hearing and an order after the hearing has been made. This is called an “Order After Hearing” and is sufficient as a final determination of custody.
4) What if there has been a “final determination” that I have sole physical custody?
If there HAS been a final determination that you have sole physical custody of the child and you are attempting to move, then (good news) things are somewhat easier for you. First, you have the presumptive right to change your child’s residence, and, second, you do not have to prove that such a move is necessary (Marriage of Burgess (1996) 13C4th 25, 37-38 and Family Code Section 7510).
HOWEVER, this right is subject to the Court’s power to prevent a move that would “prejudice the rights and welfare” of your child (Family Code 7501(a); Marriage of Burgess, supra, 13 C4th at 32). This means that if the Court finds that a move would prejudice the rights and welfare of your child, the Court can still prevent it. To make such a determination, the Court will consider the LaMusga Factors listed below.
In addition, if the non-custodial parent wants to prevent a move, they are allowed to oppose the proposed move and can seek to do so. In such a situation the LaMusga Factors listed below will be considered by the Judge.
5) If there has been a final determination that the other parent has sole physical custody, how do I (the non-custodial parent) seek to prevent such a move?
If you are the non-custodial parent seeking to prevent a move, you have some hoops to jump through. First, you have a burden to show that the proposed move will cause your child “detriment,” which requires an evaluation of their custody (Marriage of LaMusga, (2004) 32 C4th at 1078).
After detriment is shown, the normal “best interests” analysis above applies, and the Court will weigh the factors discussed above, in addition to the special LaMusga Factors discussed below. (Marriage of LaMusga, supra 32 C4th at 1098).
If there is an existing final determination of custody prior to the pending move away, you must show there has “been a substantial change of circumstances so affecting the minor child that it is essential or expedient for the welfare of the child that there be a custody change” (Marriage of Burgess, supra 13C4th at 38).
LaMusga Factors:
So, what sort of things is the Court looking at to make these determinations? Fortunately, in Marriage of LaMusga (supra at 110), the Court actually lays out all of the factors it considers when considering move-away requests where the custodial parent is trying to move the child away from the non-custodial parent. These include:
The child’s interest in stability/continuity in the custodial arrangements;
The distance of the move;
The age of the child;
The child’s relationship with both parents;
The relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put their child’s interest above their own;
The wishes of the child if they are mature enough for such an inquiry to be appropriate;
The reasons for the proposed move;
The extent to which the parents are currently sharing custody.
6) What if there has been a final determination that the other parent and I have joint physical custody of our child?
If a proposed move threatens an actual joint custody arrangement, the parties basically come to Court on a “level playing field.” In this case, the Court will approach the adjudication “de novo,” which means that they will determine anew what primary custody arrangement is in the child’s best interest based on the same standards described above. This is basically a “do over” where the Court can make a brand new decision based on the best interests of the child in light of the proposed move (Family Code Section 3087; Marriage of Burgess, supra 13 C4th at 40).
However, this “do-over” only applies if the actual and true physical custody of the child is shared between the parents. If the arrangement is labeled “joint physical custody,” but in actuality the vast majority of the child’s time is spent with the parent moving away, the same burden falls on the non-custodial parent as discussed in question 5 (Marriage of Lasich (2002) 99 CA4th at 1097).
7) What can I expect when asking for a move-away order (or trying to prevent one from occurring)?
As discussed above, the party seeking to move the child away or prevent the other parent from doing so must file a Request for Order. Prior to the hearing, a Mediation appointment will be set. At the Mediation appointment, you and the other parent will meet with the mediator to try to work out an agreement. If no agreement is made, your Court hearing will proceed. Often, the Court will appoint a child custody evaluation where a mental health professional evaluates both parents’ proposals and the needs of the child before rendering a recommendation to the Court. This helps the Judge when making a final decision.
It is important to know that move-away cases are very complex and that there is broad discretion of the Trial Court. This means the Judge has a lot of leeway when making these types of determinations. Because of the complexity of these cases, it is highly recommended that you retain a knowledgeable Family Law attorney who can help you through the move-away process.
By
Stacy M Boyer, J.D.
Mark A. Irwin, Esq.
Kelly RM. Irwin, Esq.
