A common scenario following a California divorce is for one parent to seek to move away from the area where both parents once lived with their children. Such a move may arise for many reasons: a parent may want to accept a new job, remarry, or move closer to other family. The parent who seeks to move looks at the prospective change as a new beginning, filled with opportunity. Other times the move is merely a necessity due to employment. The parent staying behind perceives the move as a threat to the very foundation of his or her relationship with the children. Both parents may be at least partially right in their perspectives, which makes relocation or move-away cases some of the most difficult in California family law.
A California court cannot forbid a parent to move, but it may forbid the parent from taking the children along, depending on the circumstances. Whether the proposed move is one hundred miles within California or across the country, if it would have an impact on parenting time, it is likely to be a bone of contention.
The best and most enduring solutions are those crafted by the parties themselves, if they can agree to the move and a revised parenting time/visitation schedule. Unfortunately, because of what is at stake and the contentious nature of these cases, parents are often unable to reach a satisfactory agreement. Because a parent cannot move away with a child without either the consent of the other parent or the permission of the court, relocation disputes often end up before a judge.
A court will often order a custody evaluation performed by a mental health professional. Such an evaluation takes place over weeks or even a few months, and California courts tend to rely heavily on custody evaluations in resolving move-away disputes.
The outcome of such disputes is also heavily dependent on the current status of custody. If there is no current custody order, or only a temporary one, the court will order an arrangement it believes is in the best interests of the child. If there is a permanent (final) custody order, it dictates how the court proceeds. If the final custody order is for shared physical custody, there will likely be an evidentiary hearing or trial in order for the court to determine whether the move would be in the child's best interests.
If the parent seeking to move has primary, or sole, physical custody, there is a presumption that the parent will be able to move with the child. This presumption can be rebutted if the parent opposing the move can show that the other parent's reasons for moving are in bad faith (such as to frustrate visitation), or that the move would be detrimental to the child. The court may also hold an evidentiary hearing or trial to make this determination.
There are numerous California cases that have created rules that dictate how California courts review move away cases. The court reviews a number of factors when deciding whether relocation would be in a child's best interests, including the reason for the proposed move; the distance; the child's age; the wishes of the child if he or she is mature enough to express his or her opinion; the ability of the parents to cooperate for the child's best interests; the child's ties to the community and friends; and which parent is more likely to encourage frequent and continuing contact with the other.
The San Diego attorneys of Shaffer & Associates represent clients in California parental relocation/move-away cases in San Diego County and the surrounding communities, including Orange County, Riverside County and Los Angeles County. We represent both parents seeking to move with a child, and parents opposing such a move. Contact Shaffer & Associates online or call (619) 595-3167 today to discuss how we can help you.