How To Prepare a Child Custody Move Away Case (A Full Guide)

Can I move with my child out of Marin? California? The United States? Will the Family Court allow me to relocate and keep my custody time? In California, cases that concern the relocation of children are referred to as “move-away” cases. More often than not, these cases are complicated.

All of these questions are normal. Many parents want to relocate but feel like they can’t because of child custody. If you have these questions, you are in the right place. The purpose of this article is to guide you on the basics regarding child move aways. If you still have questions after reading this article, contact a child custody lawyer at Warren Major LLP for advice on your specific situation today. 

Your Constitutional Right To Move Away

If you are researching whether or not you can move away with your child, you may be curious if you can move away at all. Rest assured, the family court cannot prevent you from moving away to another city, state, or country if you choose to do so. Although this doesn’t answer the bigger questions regarding moving away with your child, let’s all take a sigh of relief for the constitutional right to move or travel.

Although the Court cannot stop you from moving, taking your child with you is a different story. The Court can make Custody order based on the assumption that you (the parent) are going to move. Marriage of Paillier (2006) 144 Cal. App. 4th 461, 464.

Child Custody Move Away

Family Code Section 7501 ‘s Presumptive Right to Relocate 

Family Code Section 7501 provides the following, in pertinent part, “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.” A parent does not have a Family Code Section 7501 presumptive right to relocate the child unless he or she isawarded custody by way of a “final judicial custody determination.” See F. T. v. L.J. (20 11) 194 Cal.App.4th 1, 15 [123 Cal.Rptr.3d 120, 130].

Thus, if the final custody determination is that you have sole custody, you have a presumptive right to move away with your child. Additionally, you don’t have to prove such that the move is necessary. Marriage of Burgess (1996) 13C4th 25, 37-38 and Family Code Section 7501.

Can I Move Away With My Child Even Though I Share Joint Custody?

Ordinarily, after a “final” judicial custody determination, a parent seeking to modify the arrangement bears the burden of demonstrating there has been a substantial change of circumstances so affecting the child that modification is “essential or expedient” for the child’s welfare. See Marriage of Carney (1979) 24 Cal.3d 725, 730 [157 Cal.Rptr. 383, 385]; see Marriage of Burgess (1996) 13 Cal.4th 25, 37-38; [51 Cal.Rptr.2d 473, 482].) The changed circumstances rule is triggered only after a final or permanent judicial custody determination. See Montenegro v. Diaz (2001) 26 Cal.4th at 257, [109 Cal.Rptr.2d at 580.]) Thus, the normal “best interest” standard-and not the changed circumstances rule- applies to custody adjudications following a temporary, interim, or pendente lite custody order. See Marriage of Burgess, supra; Keith R. v. Superior Court (2009) 174 Cal.App.4th 1047, 1053, [96 Cal.Rptr. 298, 301-302.]

When a pendente lite joint custody order is in effect, the trial court must determine de novo what primary custody arrangement is in the child’s best interest. See Marriage of Burgess (1996) 13 Cal.41h25, 40 [51 Cal.Rptr.2d 444, 454, 913 P.2d 473, 483.] This different analysis “arises out of the disruption of the status quo which necessarily inheres in a move-away case where there is a genuine joint physical custody order since, in such an instance, it is unavoidable that the existing custody arrangement will be disrupted. One parent or the other must be given primary physical custody.” In re Marriage of Whealon (1997) 53 Cal.App.4th 132, 142 [61 Cal.Rptr.2d 559, 565].

Marin County Child Custody Lawyers

How Does the Court Determine the Best Interest of the Child In Move-Away Cases?

Trial courts have the “widest discretion to choose a parenting plan that is in the best interest of the child.” Family Code § 3040(c). Family Code Section 3020(a) provides, “it is the public policy of this state to assure that the health, safety, and welfare of the children shall be the court’s primary concern in determining the best interest of the children when making an orders regarding the physical or legal custody or visitation of the children.” The court must look at all the circumstances bearing on the best interest of the child. (emphasis added.) See Burchard v. Garay (1986) 42 Cal.3d 531, 534.) While a divorce proceeding is pending, the court may make child custody orders that are “necessary or proper.” Family Code § 3022.

The Court in Burchard v. Garay (1986) 42 Cal.3d 531, 542 emphasized that ” [s]tability, continuity, and a loving relationship are the most important criteria for determining the best interests of the child.” The Court in Marriage of Burgess (1996) 13 Cal.4th 25, 32-33, reiterated the paramount need for continuity and stability and held that these factors “weigh heavily in favor of maintaining custody arrangements.” 

What If I Want to Prevent A Move Away With My Child?

If you are the non-custodial parent and want to prevent a child custody move away, you will have to prove the move will cause detriment to your child. Marriage of LaMusga, (2004) 32 C4th at 1078. 

The “La Musga Factors” are as follows:

  1. The Child’s Interest in Stability and Continuity in the Custodial Arrangement. 
  2. A Significant Change in Circumstances. 
  3. The Distance of the Move. 
  4. The Age of the Child. 
  5. The Social Impact of the Move on the Child. 
  6. The Impact on the Child’s Education. 
  7. The Child’s Relationship with Both Parents. 
  8. The Relationship Between Parents. 
  9. The Wishes of the Child. 
  10. The Reason for the Move. 
  11. The Extent to Which the Parents are Sharing Custody.

Contact The Best Family Law Attorney For You

If You still have questions regarding child custody move aways / relocations in the Bay Area, contact Warren Major LLP today.