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One of the most challenging issues that arise involving child custody and visitation orders post separation has to do with “move away orders.” This occurs when one parent wants to move with a child (or children) to a geographic location that would upset the balance of the existing custodial and/or visitation situation. This article will discuss the law applicable to move away orders, and the factors considered by the court when issuing these orders.

In general, a state may make a custody decision about a child if any of the following applies:

1. The state is the child’s “home” state;
2. The child has significant connections with people in the state;
3. The child is in danger of abuse in the other state or being abandoned in the home state;
4. No other state has made a custody decision.

In California, move away orders are governed by the California Family Code and applicable caselaw. California Family Code Section 3020 provides as follows:

(a) The Legislature finds and declares that it is the public policy of this state to assure that the health, safety, and welfare of children shall be the court’s primary concern in determining the best interest of children when making any orders regarding the physical or legal custody or visitation of children. The Legislature further finds and declares that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child.

(b) The Legislature finds and declares that it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except where the contact would not be in the best interest of the child…

(c) Where the policies set forth in subdivisions (a) and (b) of this section are in conflict, any court’s order regarding physical or legal custody or visitation shall be made in a manner that ensures the health, safety, and welfare of the child and the safety of all family members.

Additionally, California Family Code Section 3087 provides that, “An order for joint custody may be modified or terminated upon the petition of one or both parents or on the court’s own motion if it is shown that the best interest of the child requires modification or termination of the order. If either parent opposes the modification or termination order, the court shall state in its decision the reasons for modification or termination of the joint custody order.”

In interpreting these and the other relevant provisions of the Family Code, the California Supreme Court set the standard for reviewing these requests in Marriage of LaMusga ((2004) 32 Cal.4th 1072.) The trial court denied a custodial mother’s request to move away, because it would make contact with the non-custodial father difficult. In reversing the trial court’s decision the California Supreme Court held as follows:

“…we conclude that just as a custodial parent does not have to establish that a planned move is “necessary,” neither does the noncustodial parent have to establish that a change of custody is “essential” to prevent detriment to the children from the planned move. Rather, the noncustodial parent bears the initial burden of showing that the proposed relocation of the children’s residence would cause detriment to the children, requiring a reevaluation of the children’s custody. The likely impact of the proposed move on the noncustodial parent’s relationship with the children is a relevant factor in determining whether the move would cause detriment to the children and, when considered in light of all of the relevant factors, may be sufficient to justify a change in custody. If the noncustodial parent makes such an initial showing of detriment, the court must perform the delicate and difficult task of determining whether a change in custody is in the best interests of the children.”

The first consideration the court makes in deciding a move away order is the status of custody of the child (joint or sole custody). Joint custody is when the parents share custody. The court will hold an evidentiary hearing to determine whether the party requesting the move has met his/her burden and to determine what is in the best interests of the child. When one parent has sole custody, he or she has a “presumptive” right to move the child, and the non-custodial parent will have to make an initial showing of “detriment” to the child, before the court will even hold an evidentiary hearing.

Establishing “detriment” can be extremely difficult. The non-custodial parent must show more than a harmful impact on the child due to the move, in order to establish detriment (such as the potential impact on his or her relationship with the child). If the non-custodial parent can establish an initial showing of detriment, the court then conducts an evidentiary hearing to consider the move away request.

At the evidentiary hearing, the court considers documentary evidence and witness testimony. California law requires that children 14 and older must be allowed to testify (unless the Court finds it will be harmful to the child to do so). Children under 14 may also give their preference if the Court finds it appropriate. While the child can actually testify in open court, many judges prefer to have the information gathered by a mediator or other professional evaluator, so that the child does not have to state in open court which parent he or she would prefer to live with (which could be traumatic for a child).

During the hearing, the court will look a a variety of factors in making its determination. The top seven factors the court looks at are:

1. Maintaining stability and continuity in the child’s life. When looking at maintaining stability, the court looks at how much time the child spends with each parent; how long the current custody order has been in place; the child’s ties to friends, school, and community; and any special needs the child might have.
2. Distance of the move. A move that is a reasonably short drive will be viewed as less disruptive than a proposed move across the country or overseas. The court will also consider cultural differences in the location of the proposed move and its impact on the child.
3. Age of the child. The courts will likely scrutinize a move involving a very young child more closely than an older child.
4. Where the child wants to live. As indicated above, children 14 and older in California must be allowed to express their opinion about where they want to live, and with which parent.
5. The reason(s) for the move. While the parent does not have to show “necessity” for the move, the court will look at the purpose of the move, especially if there is any evidence the move is being made in bad faith (such as to interfere with the relationship between the child and other parent). The court will analyze the history of the relationships, to see if there is a pattern of “restrictive gatekeeping”, such as negative talk about the other parent in front of the child or a failure to communicate about important events and information involving the child’s life.
6. The relationship the child has with each parent. The court will look at the primary attachment the child has; whether the child is estranged from one parent; and whether there is conflict between the child and either parent.
7. The relationship between the parents and their ability to co-parent effectively. The court will look at how well (or poorly) the parents communicate with each other; whether they can put their child’s interests ahead of their own; and whether they will facilitate contact between the child and the non-custodial parent.

Due to the fact that move away cases are so complicated with no clear-cut guidelines for the court to follow, it is imperative that you contact a family attorney to discuss the facts and your options before you seek to have the court approve your move away order.

ABOUT LINDA LINDSEY

Linda A. Lindsey is a life-long resident of the Inland Empire and she is the sole proprietor of Lindsey Law. She is not only a licensed attorney in the State of California and the United States – Central District Court of California; she also holds an M.B.A. and has over 25 years of successful for-profit and non-profit business experience. She believes that all persons should have access to justice and even with a busy law practice she contributes her time and energy at local legal aid agencies. Ms. Lindsey provides legal representation in the areas of family law, bankruptcy and contracts. Lindsey Law is dedicated to providing its clients with quality legal representation from inception to conclusion. To learn more about Ms. Lindsey and Lindsey Law, please visit http://lindseylawoffice.net