Child Custody Move Away Cases

What we write below cannot possibly cover everything about California move away cases. We are currently working on a guide for this topic. But for now, we think you will find this information useful.

First, nothing we write here applies to service members who are active military or National Guard. A parent who fits into either category and needs to move with or without the child has certain other criteria which may apply to his or her case. Second, this certainly is not legal advice. You need legal advice? If your case is in the Southern California counties we handle, give us a call and let's talk.

Is there a court order already in place? 

The first thing we need to consider in a California child custody move away case is whether there are court orders already in place. If there are, the second question is whether those orders are temporary or a final child custody adjudication. We will not repeat the differences between temporary and final orders and we strongly suggest you check out our page on the different types of physical custody and parenting time orders.

If the parent who seeks to move only has temporary child custody and visitation orders, the court jumps right into a best interest analysis when determining whether it should grant the move away. Grant the move away means the court has to decide whether the parent is permitted to move with the child. The court does not determine whether the parent can move because a parent can always move. Every parent has the constitutional right to travel. However, if that parent intends to take the child with him or her, that is where California custody and move away law comes into play.

If the court order is a final child custody adjudication, then it gets more complicated. Whether the court jumps into a best interest analysis or not depends on whether the parents share joint physical custody or whether one parent has sole physical custody.

Difference between joint versus sole custody matters

The difference between the joint physical custody and sole physical custody is not the label in a court order. In fact, the deciding factor may not even be what the court order says but rather what the parents are actually doing regarding parenting time.

For example, if a mother has 90% of the parenting time but the court order says mother and father have joint physical custody, that is not really joint physical custody. A court does not just blindly look at the language of an order and assume that must be what is happening.

The opposite is also true. If a parent has close to equal custody but the court order says one parent has sole physical custody, the court should treat the parenting time and custody as being joint. So what is the big deal about sole versus joint in a California move away case? I'm glad you asked.

When a parent has sole physical custody, the current court order is not temporary and that custodial parent seeks a move away, the move may become easier to obtain.

First, the parent needs to check the court order carefully. Does the court order require consent or a court order for the move? If so, that parent must get consent or file a request for order to obtain an order. Does the order say nothing about consent but states the custodial parent can move with the child upon giving a certain number of days notice?

That may allow that parent to simply give notice of the move which may place the burden on the other parent to then go to court to stop it. It is not black-and-white however and often there are other terms in the court order that may control such a scenario. Proper legal advice and a proper consultation is a key here. You will not get that from any website page.

What if the court order is completely silent on the issue?

That gets tricky and once again an experience family law attorney can talk about the options in that scenario and whether it makes sense to give notice of the move and rely on a presumptive right to move for the custodial parent or not?

You may wonder right about now what I mean by “presumptive right” to move.

I refer to Family Code § 7501(a) states which states, “[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.”

Does the non-custodial parent have to show "detriment"?

Back to the sole custody scenario, if that custodial parent who has a final order wants to move and let us further assume he or she does file a request for order, the burden does not start with the custodial parent. California case law has stated the noncustodial parent has the initial burden to show the move would cause "detriment" to the child. What in the world's detriment?

Detriments certainly is not some mathematical calculation. We don't measure it by the distance of the move or some other clear formula. Detriment focuses on a few things.

First, is the move really in good faith?

In other words, is this a move that will benefit the child or hurt the child? If the move will hurt the child because the location of the move does not afford the child the same stability and perhaps lifestyle as the current place where the child lives, the court can consider that.

Second, will the move unravel or otherwise frustrate a current stable custodial arrangement?

Just because a noncustodial parent does not have equal or close of equal parenting time does not mean that person should be tossed aside and the stability and continuity to the child such a parent brings should be dismissed. Perhaps the noncustodial parent has such a close bond with the child or otherwise has created such a stable and healthy environment for the child that a move could really cause detriment to the child.

Third, we get to whether the move will or even is intended to frustrate the noncustodial parent's relationship with the child.

Let's face it, some parents want to move not because it will benefit the child in any way but because they want to get as far away from the other parent. And if that is the case and that custodial parent who wants to move has a history of frustrating or interfering with parenting time including potentially violating court orders, it can certainly be important when arguing the detriment factor.

What happens if the noncustodial parent cannot show detriment?

Usually, bad things happen for that noncustodial parent because the custodial parent then gets to move with the child. In fact, the moving parent can even argue the non-custodial parent does not even have a right to an evidentiary hearing. Is that really true? The short answer is maybe.

It was true before 2010 but now it is a little less clear. That is because our California legislature loves making simple things more complicated and it may have created a question as to whether a non-custodial parent who objects to a move away can actually be denied an evidentiary hearing if he or she wants that hearing to show detriment?

California Family Code 217 and California Rules of Court, Rule 5.113 seem to give a right to either parent to put on a full evidentiary hearing. How does that apply to move away cases for the noncustodial parent? As of 2017, we don't really have an answer to the question. In our practice, if we represent the noncustodial parent who objects to the move, we demand an evidentiary hearing and point to these codes and rules in support of it. But it is hardly a black-and-white scenario.

The California best interest of the child standard

What happens if the noncustodial parent can show detriment? In that situation, the court launches into a best interest analysis which is where the fun and the real stress begins.

So where are we at this point? We are assuming the noncustodial parent showed detriment. We are then launching into a best interest analysis. Interestingly enough, if the parents shared joint physical custody and one of the parents wanted to move, this is where we start. Because in that hypothetical, we skipped the detriment analysis.

Let us now go into best interest in a move away. Thankfully, the California supreme court gave us those factors in a case called Marriage of LaMusga (pronounced “La-Moo-Shay” or I suppose you can just say “La-Moose-Gah”). Here they are:

• The child's interest in stability and continuity in the custodial arrangement;
• 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 the interests of the child above their individual interests;
• The wishes of the child if he or she is mature enough for such an inquiry to be appropriate;
• The reasons for the proposed move; and
• The extent to which the parents currently are sharing custody.

This factors mean the court will engage in a fact rich analysis to determine if the move is in the child or children's best interest.