Move Away Custody Relocation Requests California

Move Away Custody Relocation Requests California

Move away custody cases are amongst the most complex and heartbreaking in the family law world.  When one parent moves away with the child to a distant town where frequent visits aren’t possible, it means the child will lose out on time with the parent who stays.

The Realities of Move Aways

The reality is if you are not close in proximity to your child, you risk losing the bond.  There is plenty of research and literature out there that prove having children benefit the most from having frequent and continuing contact with BOTH parents (which is why this is the law!), so unless there is something urgent causing you to move, DON’T.

That being said, there are instances where move aways must happen: the job, the new family, extended family.

Whatever it is, first recognize the REALITY.

Some helpful articles:

Parental Relocation and Relocation Realities

The Legality

After the reality sinks in, let’s discuss legality. California Family Code � 7501. Right to change residence of child_  states that the parent with primary physical custody 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.

The Cases

Moveaways require lawyers.  In the meantime, I recommend that you acquaint yourself with the 2 landmark moveaway cases, 13 Cal.4th 25, S046116, In re Marriage of Burgess and 32 Cal.4th 1072, S107355, In re Marriage of LaMusga_

In Re Marriage of Burgess

Family Code 7501 actually refers to In Re Marriage of Burgess.

In Burgess, the mother and father had joint custody of two children in Kern County.  The mother had sole physical custody.  Thereafter, the mother filed a motion to move to Lancaster, over 40 miles away in pursuit of a new job.  Father then filed a motion to modify custody, seeking sole custody for himself.

The California Supreme Court ruled in this case that the father had the burden to prove the move was detrimental.   If father could not meet his burden, mother would be permitted to move.

The courts seemingly interpreted this ruling to mean that, if the custodial parent could show that they were not making the move to frustrate the other parent’s contact with the child, then the move, with the children, would be permitted. The California Supreme Court finally addressed and clarified this issue in 2004.

In re Marriage of La Musga

La Musga involved two children.  The parents had joint custody, with mother having primary physical custody.

Mother then decided she would move away to Ohio.  Father then decided to file a request to modify custody.

The California Supreme Court reaffirmed their ruling in Burgess. In move-away cases, the non-custodial parent has the burden of showing that the relocation of the children would be detrimental to them. The father met his burden.  Thereafter, the Court must examine what is in the Court’s best interests.

Very Fact Intensive

Bottom line, move away cases are fact intensive. Attached is a List of MoveAway Cases and their outcomes.

As always, if custody is at issue, divorce mediation is the best option.

 

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