Economic circumstances, remarriage or even the existence of a support network often give rise to consideration of a move. Any move a parent makes that disrupts the current custody plan in a manner that is detrimental to the relationship of either parent is a move away and may be a substantial change of circumstances warranting a change in custodial time or even a change of custody.
The court always has to consider the best interests of the child, but also the current timeshare and how each parent is exercising his or her time with the children.
A move away may mean across the country, overseas, or it could even mean merely moving to the other side of the county. The court always has to consider the best interests of the child, but also has to consider the current timeshare and how each parent is exercising his or her time with the children.
What the Court Considers when Deciding on a Move Away
Generally there are two sets of circumstances that the court will evaluate to handle a move away. The first is where one parent generally has sole physical custody of the children and the non-custodial parent sees the children very infrequently, if at all. In that instance, if the custodial parent wishes to move and the noncustodial parent objects, the noncustodial parent has to prove to the court (before an evidentiary hearing) that the move will be detrimental to his or her relationship with the child.
The leading case regarding a move away under these circumstance is In re Marriage of Brown & Yana (2006) 37 Cal. 4th 947, a California Supreme Court case.
The Court said that where “one parent has been awarded sole legal and sole physical custody of a child and the noncustodial opposes the custodial parent’s decision to relocate with the child, a court may deny the noncustodial parent’s requests to modify custody based on the relocation without holding an evidentiary hearing to take oral evidence if the noncustodial parent’s allegation or showing of detriment to the child is insubstantial in light of all the circumstances presented in the case, or is otherwise legally insufficient to warrant relief.” In re Marriage of Brown & Yana, supra, 37 Cal. 4th at 962.
In the other situation where the parents have frequent and continuing contact with the children, and have a regular schedule which is exercised fully, the court takes a different view. It presumes the move will be detrimental to the child. The court sets in motion a number of procedural safeguards, including holding an evidentiary hearing and possibly ordering a custody evaluation or appointing minors counsel in order to determine what is in the children’s best interest, reiterated in the infamous case, In re Marriage of Seagondollar(2006) 139 Cal. App.4th 1116.
In Seagondollar, the trial court failed to evenly apply the rules and procedures required in these types of family law cases. Further, the appellate court stated in its criticism of the trial court that in cases where the parties have joint legal and joint physical custody, if it is shown that the best interests of the children require modification or termination of the order, the court must determine, de novo, what arrangement for primary custody is in the best interest of the children.” In re Marriage of Seagondollar, supra, 139 Cal. App.4th at 1128.
Some Suggestions for Custodial Parents who are Wishing to Move:
- Make sure your contemplated move is not out of spite. While whether the move is being made in good faith is not a significant factor in the Court’s analysis, the Court will consider if the move is being made specifically to interfere with the other party’s custodial time.
- Give ample written notice to the noncustodial parent, not just a month or 45 days. Even several months notice may not be enough. The Courts are congested and your case may not be resolved at the first hearing. Make your plans appropriately.
- Provide a specific custodial plan that allows the other parent to maintain his or her frequent and continuing contact with the minor children. This may include, depending on the distance of the intended move, substantial time in summer/off school offering to pay airfare for visits, offering airfare for noncustodial parent to come out and visit, or any other effective compromise that allows that no loss of time and still maintains the noncustodial parent’s ability to see the children regularly.
- Consider filing your own Order to Show Cause to obtain a move away order, instead of waiting for the other party to do so.
Some suggestions for noncustodial parents where the other party wishes to move:
- An ounce of prevention is worth a pound of cure. Make sure you have fully exercised all custodial time that has been ordered. Be proactive – if not otherwise prohibited, go to back to school night, open houses, the children’s extracurricular activities, meet teachers, go to doctor’s appointments, etc.
- File an Order to Show Cause immediately upon learning about the other parent’s intent to move, especially if you have joint physical custody of the children. If the move is imminent, consider asking the Court for emergency orders blocking the removal of the children.
- Even though a Court hearing may be pending, there is nothing that disallows you from reaching a compromise with the other parent. However, any such agreement must be in writing and filed with the Court for it to be enforceable.
Great Legal Counsel is Always your Best Option
A move away can be extremely complicated both factually and procedurally. Having representation is highly recommended if you desire a successful outcome.