So you have a child custody move away case in California. Whether you are the one seeking a move away or the one opposing it, most experienced custody lawyers would tell you that move away cases are some of the most emotionally difficult one for divorce and family law clients. More than perhaps any other area of family law, a California move away case creates a bitter division between parents whereby the parent who seeks to move looks at the challenge to start a new life elsewhere while the parent who opposes the move vows to fight to the end to keep the child or children from leaving.
Our experienced child custody attorneys have handled move away cases and, in this article, we will share with you what you must know about the move away case before you proceed with one or to oppose one.
Once you have read this article, please contact our law firm for an affordable consultation. No article can evaluate your specific facts so the retention of a knowledgable child custody lawyer like those at our firm and evaluation of your issues and facts is a necessary part of making good decisions.
A move away is a serious disruption of most child custody schedules
Having a stable and continuous custody arrangement is one of the most important factors in any custody case. Whenever courts are in doubt as to what custody arrangement is best, they will look to the status quo as the fallback if it has been working, although not perfectly, well enough for the children. Move away cases are the most disruptive to the status quo because it is a rare instance that the parents can maintain the same visitation schedule if one of the parents seeks to move out of California or to another part of the State.
The role a sole or joint physical custody order plays in California move away cases
First, the custody attorney must look at whether or not the parent who wants to move has sole or joint physical custody of the children. If there has already been a final judgment of custody in the case and the parent who seeks to move has been given sole physical custody, the non-custodial parent who wants to avoid the move away generally has the initial burden to show that the move would cause a detriment to the children. That is because a parent that has sole physical custody is presumed to be able to relocate with the children so long as he or she gives a proper and legal notice to the other parent of the intent, although there may be exceptions to this rule in certain cases.
What happens if the court order does not allow a move away absent written agreement or further order?
In such a situation, the parent who proposes to move must file a formal request with the court and obtain a move away order. The noncustodial parent still has the initial burden to show a detriment to the children with regard to the proposed move if there has been a final child custody adjudication and the parents don’t have joint physical custody.
If the parents share joint physical custody, a careful analysis should take place as to whether or not the move is or is not in the children’s best interest. California Family law judges look at this best interest standard with fresh eyes and assume that the parent who requests the move really does intend to move with the children.
If the move away is denied, the Judge cannot assume the requesting parent will stay
Parents think that if their move away is denied, no big deal – they will just change their mind. It usually does not work that way (although this issue is not always black or white).
If the move away request is denied, the Court should make orders consistent with the requesting parent moving without the children (although not all courts do). That is because the Court generally should not assume that parent will stay and I have heard judges specifically state to a parent proposing to move that he/she better know what he/she is asking because if the judge denies the move away, the judge is going to give custody to the other parent.
Does that mean it will happen? Again, it’s not always black and white like that. There is some California case law that deals with conditional move away orders but those are beyond the scope of this article.
The complexity and sometimes confusion over such issues highlights one point – it is critical that a custody attorney educate his or her client who seeks a move away that if the move away is denied, there may be (and sometimes, there is a high risk there may be) a change in custody such that the parent who opposed the move away will attain primary and possibly even sole custody of the children.
In addition, the law on move away cases can and sometimes does change. Our appellate courts and the California Supreme Court can make subtle or significant changes to custody move away law. Courts don’t enact laws but they do interpret them and how they should be understood and applied. That is also why seeking the advice of a family law attorney is important because what you read (including what you read here) may be outdated by the time you read it.
Is the difference between joint or sole physical custody whatever is labeled in the court order?
You may wonder what actually qualifies as joint versus sole custody? Is it enough that a custody judgment simply lists the parents as having one or the other? The short answer is no. Labels in custody judgments are not final and determinative as to whether or not parents have joined or sole custody. Courts focus on the actual timeshare that is being exercised between the parents. We would want to know whether or not the parents really do share equal time with the children regardless of what the custody judgment may say.
What happens when there has not been a final child custody adjudication and one parent seeks a move away?
In such a situation, the court simply uses the California’s “best interest of the children” standard and does not presume anything for or against either parent when determining whether a move away should be allowed. However, the court will still proceed as if the parent that requests to move away actually intends to do so.
Hire an experienced child custody lawyer for your California move away case
Trust your move away case only to an experienced and skilled child custody attorney. At Farzad Family Law, not only do we bring that experience and skill, but we also provide you with patience and compassion for your very difficult and emotionally exhausting move away case. We take our time and make sure that you understand exactly what you are getting yourself into, whether you seek a move away or oppose one, before you end up in litigation. That is why our child custody lawyers have had success in move away cases.
We look forward to speaking with you and offering you an affordable initial consultation to discuss your move away case.
Got more questions about custody? Check out our informative Orange County child custody FAQ page.