Child Custody and the Right to Move Away

By: Donald P. Schweitzer

Presumptive Right to MoveIn our increasingly mobile society, custodial parent’s frequently desire to move out of state or to a different part of the state with the children, leaving the non-custodial parent far behind. Such moves are usually based upon the fact that the custodial parent has found a new job that requires the move or has a network of family members that he or she would like to live near. Based on these realities, California law provides that a parent who has primary physical custody of a child has a presumptive right to change the child’s residence – i.e., to move away with the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child.

A custodial parent seeking to relocate with a child bears no burden of establishing that the move is “necessary." In fact, the non-custodial parent bears the initial burden of showing that the proposed relocation of the child’s residence would cause detriment to the child, requiring a reevaluation of the child’s custody.

Procedural SafeguardsBased on our strong public policy favoring stable custody arrangements, trial courts will usually make an immediate interim ruling staying the move-away until the parents have been given the opportunity to participate in meaningful mediation, to obtain an independent custody evaluation and, ultimately, to present their positions at a meaningful hearing – including the right to present live testimony.

If the non-custodial parent makes such an initial showing that the move-away would be detrimental to the child, the court must perform the delicate and difficult task of determining whether a change in custody of the child is in the child's best interest.

Child’s Relationship with Non-Custodial Parent a FactorAmong the factors that the court ordinarily will consider when deciding whether to modify a custody order in light of the custodial parent’s proposal to change the residence of the child are the following: 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 interests; the wishes of the child if the child 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.

In light of the above criteriaBusiness Management Articles, the court can deny the proposed move if: the custodial parent has a history of not sharing custody with the non custodial parent; if the court finds the proposed move is being made for vindictive purposes; and if the court finds the move would be detrimental to the strong relationship between the child and the non-custodial parent.

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