“Move Away” Cases

In California, when parents separate or divorce, a court will issue orders for custody and visitation arrangements based on what is in the best interest of the child. In general, the goal of a custody order is for both parents to maintain frequent and continuing contact with their children.

A “move-away” case arises when a parent that has joint or sole custody of the child decides to move to a location that is far enough away to disrupt the current custodial arrangement. Whether the move is a short distance or long distance, if the move will seriously impact the current custody situation, the parents will need new custody and visitation orders. When a divorced parent wants to move away with a child, one of the parents files a motion with the court for new custody orders. The moving parent might file for permission to move with the child, or the other parent might file a motion for a change of custody so that the child can stay.

It is important to remember that in a move-away case, the court does not decide whether the parent can move. People have a Constitutional right to move and the court can’t prevent them from doing so. Instead, the court has to decide whether the child should move with that parent and, if so, what the visitation arrangement should be. If the parent is able to make the initial showing that the move will be harmful to the children, then the court will have a hearing to reconsider the custody order and determine whether a change in the order is in the best interests of the child. If the parent cannot show a detriment, the child will be allowed to move.

The judge will examine evidence and hear live testimony. Parents, child custody evaluators, and others with relevant information regarding the child’s best interests may testify. In some cases, the child may testify. California law requires that the court consider a child’s wishes as to custody and visitation if the child is old enough and mature enough to make an intelligent preference. Children 14 years of age or older must be allowed to testify if they want to, unless the court finds that it is not in their best interest. Children under 14 years of age may also give their preference if the court finds that it is appropriate.

At the hearing, the court will look at evidence related to the following factors:

  • the importance that the child maintain a stable and continuous environment, considering factors like how much time the child spends with each parent under the current arrangement, how long the current custody order has been in place, as well as the child�s ties to friends, school, and community activities and any special needs the child has
  • the distance of the move
  • the child’s age
  • the child’s relationship with both parents
  • the relationship between the parents, including how well they communicate with each other, whether they’re able to put their child’s interests ahead of their own, and how likely the moving parent is to accommodate contact between the child and the other parent
  • where the child wants to live, if they are of an age and maturity level to make an intelligent preference, as discussed above, and
  • the reasons for the move (while the moving parent does not have to show that the move is necessary, if there is evidence that the purpose of the move is just to disrupt the relationship between the child and the other parent, the court may factor this reason into the decision).

In sum, move-away cases are complicated and challenging. There are no clear-cut rules to guide the court in making the decision. The goal is to create an arrangement that will be best for the children and allow them to have a continuing relationship with both parents, even when there is distance between them.

Dieter Zacher, Esq.

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