If you are preparing to relocate, you may be wondering if you can move away with your children. Economic circumstances, remarriage or even the existence of a support network often give rise to consideration of a move. Any move a parent makes that disrupts the current custody plan in a manner that is detrimental to the relationship between the other parent and the children is considered a move away request. This request must be made to the court, which must decide whether the move is in the “best interest” of the children of the marriage.
The court always has to consider the best interests of the child, but also the current timeshare and how each parent is exercising his or her time with the children. A move away may mean across the country, overseas, or it could mean moving to the other side of the county.
What the Court Considers when Deciding if You Can Move Away with Your Children
Generally, there are two sets of circumstances that the court will evaluate to handle a move away. The first is where one parent generally has sole physical custody of the children and the non-custodial parent sees the children very infrequently, if at all. In that instance, if the custodial parent wishes to move and the noncustodial parent objects, the noncustodial parent has to prove to the court that the move will be detrimental to his or her relationship with the child.
The leading case regarding a move away under these circumstance is In re Marriage of Brown & Yana (2006) 37 Cal. 4th 947, a California Supreme Court case.
The Court said that where “one parent has been awarded sole legal and sole physical custody of a child and the noncustodial opposes the custodial parent’s decision to relocate with the child, a court may deny the noncustodial parent’s requests to modify custody based on the relocation without holding an evidentiary hearing to take oral evidence if the noncustodial parent’s allegation or showing of detriment to the child is insubstantial in light of all the circumstances presented in the case, or is otherwise legally insufficient to warrant relief” In re Marriage of Brown & Yana, supra, 37 Cal. 4th at 962.
What this means is that the court can decide that they will permit the custodial parent to move away without conducting an evidentiary hearing. There is one reason why it is very important to fight for joint physical custody when the court originally makes a court order.
In the other situation where both parents have frequent and continuing contact with the children and have a regular schedule which is exercised fully, the court takes a different view. It presumes the move will be detrimental to the child. The court sets in motion a number of procedural safeguards, including holding an evidentiary hearing and possibly ordering a custody evaluation or appointing minors counsel in order to determine what is in the children’s best interest.
Great Legal Counsel is Always Your Best Option
A move away can be extremely complicated both factually and procedurally. The law firm of Wallin & Klarich has over 30 years of experience helping clients who are struggling with custody and visitation matters.
Please speak to one of our skilled family law attorneys today for immediate help. Call us now at (888) 749-7428. We will get through this together.
