Archive for July, 2011

California Divorce Blog–Move Away Request

July 9, 2011

As a California Family Law Attorney I am often asked by parents with a custody sharing agreement about how to move away from the area with the children.  This is often referred to as a “Move Away” matter.  Typically, a parent might receive a new employment opportunity out of state, or have family out of state, and decide that it will be better to relocate with the children.  California law does allow for a parent to relocate out of State with the children but only upon the parent first obtaining court approval.  There are many ways to obtain court permission (a court order) which is discussed below. The issue arises when the non-moving parent objects to the Move Away out of state (or out of the area since California is a large state).

I always recommend first discussing the matter with the non-moving parent. If the non-moving parent agrees with the move away then we can simply draft the required documents and request the Court to sign. This is the easiest way to accomplish a move away out of state.

If the non-moving parent objects to the move away then we must file a motion with the court and request a court order to allow the move away out of state.  The non-moving parent will have the opportunity to object to the move away and the court will hold a full court hearing.  If the matter is very complex the court  may order that Minor’s counsel be appointed for the child or children and a California Family Code Section 730 Evaluation occur to evaluate what is truly in the best interest of the children.  After an evidentiary hearing the court will either conclude that the moving parent may move away with the children or the moving parent may not move away with the children.  (The judge cannot order the moving parent to remain in the area however the judge can order the children to stay with the non-moving parent).  These are the possible Court orders.  Therefore, I do not recommend that you attempt to pursue this matter without an attorney.  This area of law is extremely complex and therefore requires legal representation in my opinion.

Now for the law on Move Away matters. In California, the Custodial Parent has a presumptive right to change the children’s residence.  By statute, the parent with sole physical custody of the children has the presumptive right to change the children’s residence—i.e., to move away with the children; courts will not interfere with that decision (enjoining the relocation or changing custody) unless the move is detrimental to the child. “A parent entitled to 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.” (Family Code Section 7501; Marriage of Burgess, see Marriage of LaMusga—custodial parent’s presumptive right to relocate with children not dependent on whether parents had history of cooperative co-parenting)

Codified public policy: The Legislature has elevated the Supreme Court’s ruling in Burgess (the modern-day seminal case in this area), as developed below, to statewide public policy: “It is the intent of the Legislature to affirm the [Burgess] decision … and to declare that ruling to be the public policy and law of this state.” (Family Code SEction 7501(b).

However, there is not an absolute right to relocate or Move Away.   Family Code Section 7501 unambiguously provides that the custodial parent’s right to relocate with the children is presumptive only—not absolute; that right may be curtailed if the move would result in detriment to the children. This is so even if the custodial parent has been awarded both sole legal and sole physical custody; he or she nonetheless has no “inherent” or “absolute” right to change the children’s residence. “[T]he statute contains no qualifying language purporting to limit its application to parents with only certain custodial rights.”(Marriage of Brown & Yana)

The Standard and burden of proof is as follows:  Generally, the governing standards and burdens of proof in move-away cases are the same as in all custody adjudications:

Initial custody adjudications—best interest analysis: In an initial custody determination, the trial court has the “widest discretion to choose a parenting plan that is in the best interest of the child” (Family Code Section 3040(b) and must look to all the circumstances bearing on the child’s best interest (including, of course, the mandatory § 3011 factors) (Marriage of Burgess see Ragghanti v. Reyes (trial court used correct “best interest” analysis because parties stipulated there was no existing “final permanent custody order”)

The trial court must take into account the custodial parent’s presumptive right to change the children’s residence so long as the removal would not prejudice their rights or welfare (Family Code Section 7501(a)).  Accordingly, in considering all the pertinent circumstances affecting the children’s best interest, the court may consider any effects of a contemplated relocation on their rights or welfare. Marriage of Burgess; Marriage of LaMusga).
Stated another way, in an initial custody decision, the planned move and any resulting prejudice to the children must be considered; but those factors do not preclude the court from also considering all other circumstances bearing upon the children’s best interest. The noncustodial parent does not have a burden to show the move will be detrimental; “under the best interest analysis [applicable to initial custody adjudications], the trial court’s consideration of the evidence is not limited by the need to make a threshold finding of detriment.” (See Ragghanti v. Reyes).

Some questions which will need to be addressed in a Move Away Motion are as follows:

• the children’s interest in stability and continuity in the custodial arrangement;

• the distance of the move;

• the children’s age;

• the children’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 children’s interests above their individual interests;

• the children’s wishes if they are mature enough to make that inquiry appropriate;

• the reasons for the proposed move; and

• the extent to which the parents currently are sharing custody.

As discussed above, this is a very complex area of California Family Law and I therefore recommend that you contact a competent attorney to represent you if you are contemplating pursuing or opposing a child custody Move Away motion.  Please contact Attorney Keith Simpson to discuss your legal matter today at (310) 297-9090 or visit his website at  Attorney Simpson is located in Manhattan Beach, California and practices Family Law throughout California.