Move-Away or Relocation Requests in California – California Family Code Section 7501
A move-away, or relocation, case is when one parent, usually a parent with primary physical custody, seeks to move their child to a new residence located outside of their current city, county, state, or country. Regardless of the distance of the planned relocation, move-away cases are among the most complex of all family law cases. You should not engage in a move-away case without the guidance of an experienced move-away attorney. Whether you are a custodial parent seeking to relocate with your child, or a non-custodial parent who seeks to prevent a move-away order, you can rely on the knowledge and expertise of an experienced Wallin & Klarich move-away attorney, to help you achieve the best possible outcome in your case.
Under California Family Code Section 7501, a parent with primary physical custody of their child has a right to change the residence of the child. However, you cannot change the residence of your child without an agreement with the child’s other parent, or the order of a family law court. In recent years, the California Supreme Court has given judges in family courts wide discretion to deny move-away requests if the relocation would prejudice the rights or welfare of the child. Thus, Section 7501, along with recent California Supreme Court decisions, makes it very difficult for a custodial parent to move away with their child.
It is important to note that each move-away case is decided on a case-by-case basis. This means that many factors will be considered in deciding whether a move-away order will be granted in your case. The outcome of your case will depend on the facts of your case, as well as the judge that your case is assigned. Thus, it is imperative that you seek the counsel of an experienced move-away attorney who knows the law and has experience in the courthouse where your case is located.
Case History of Move-Away Requests
In re Marriage of Burgess
The California Supreme Court made a significant ruling in the case of In re Marriage of Burgess (1996) 13 Cal.4th 25, 51, that seemed to clarify California Family Code Section 7501, so that parents who want to relocate could no longer successfully argue that they had an absolute right to relocate with their child.
In this case, the parents of two children, residing in Kern County, entered into divorce proceedings. The parents agreed to joint custody of their children, with the mother to have sole physical custody. The father agreed to a temporary visitation schedule, if the mother remained in Kern County. The parties could not come to an agreement as to a visitation schedule if the mother moved out of Kern County. The mother then announced her plans to relocate with the children, to Lancaster, CA, approximately 40 miles away from their current home. The mother stated that her reason for moving was that she acquired a new job that would increase the quality of life for the children. Upon learning that she planned to relocate with the children, the father filed a request for sole physical custody of the children.
The California Supreme Court ruled in this case that a parent may only change the residence of their child if the family law court determines that the move would not prejudice the rights and welfare of the child. This essentially shifted the burden to the non-moving parent to prove that the move would be detrimental to the child and not in the child’s best interest. Thus, the father had to show that the mother moving 40 miles away would be detrimental to his children. If he was able to prove that the move would be detrimental to the children, he would have to prove that a change in primary physical custody from the mother to him would also be in the children’s best interest. However, the application of this ruling was confusing to some family law courts.
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 LaMusga
In Re Marriage of LaMusga (2004) 32 Cal.4th 1072, involved parents who had two children. Upon filing for divorce, the parties could not come to an agreement regarding child custody, so the family law court ordered a psychological evaluation be performed to determine child custody. Based on this evaluation, the court ordered that the mother would have primary physical custody. About two years after the orders were made the mother filed a request to move-away to Ohio. The father, believing that the mother was attempting to alienate him from his children objected to the move-away and requested that the custody orders be changed so that he would have primary physical custody of the children. The family law court decided that the move-away with the children was at least partially motivated by a desire of the mother to disrupt the relationship between the children and the father. Thus, the family law court ordered that if the mother moved to Ohio, the father would obtain primary physical custody over the children.
The California Supreme Court reaffirmed their ruling in Burgess. They decided that, 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 Court clarified the Burgess decision by indicating that, the impact that the proposed move will have on the non-custodial parent’s relationship with the children can be used as a factor in determining whether the move is detrimental. A good faith move on the custodial parent’s part, does not mean that the move will not frustrate the relationship between the children and the non-custodial parent. Thus, it is not enough for the custodial parent to indicate that their purpose is not to frustrate the relationship between the children and the non-custodial parent. After detriment is shown, in order to make a change in custody, the non-custodial parent must show that it is in the best interest of their child.
With this decision, the California Supreme Court upheld the family law court’s decision that a change of custody would frustrate the father’s relationship with his children. Thus, if the mother moved to Ohio, a change of primary custody would be warranted.
The California Family Code on Move-Away Orders
While the California Supreme Court cases did not change the wording of California Family Code to reflect the changes in the interpretation of the law, the cases effectively changed the way that the family law courts use the law in determining whether to grant move-away requests. Requests for a move-away order and objections to move-away orders are extremely complex cases that require the knowledge and skill of an experienced child custody attorney. You should not attempt to handle a move-away case on your own.
The move-away Process
If you wish to obtain a move-away order through the courts, you must first file paperwork with the family law courts indicating the reasons that you wish to move away and why you believe that the move-away is in the best interest of your child. The court will then set up a court hearing, or series of hearings, depending on the complexity of your case, so that the judge can obtain all of the facts necessary to make a decision about whether the move-away should be granted.
It is important to note that the family law courts always strive to make orders that it believes are in the best interest of your child. Further, under California Family Code Section 3040, the court will also always try to make orders that ensure that your child has “frequent and continuing contact,” with both parents. Thus it is very important that your arguments are framed in a manner that will show that your move-away request is not only in the best interest of your child, but also that the move-away will not frustrate the other parent’s relationship with your child.
Detriment and the Best Interest of the Child Standard
After your case has been filed and you have served the necessary paperwork on the other parent, the burden shifts to the other parent to prove that your child moving away would be detrimental to your child. There are many ways that a party can show that a move would be detrimental to the children. Perhaps the most utilized and strongest argument is that a move would frustrate the relationship between the other parent and the child, which is detrimental to the child because it will likely be more difficult to have “frequent and continuing contact” with both parents. This is a very important step in the case for both parties. Without the knowledge and expertise of a skilled child custody attorney, your request or objection to the move-away could be denied and you could lose custody of your child.
If the non-moving parent is able to show that the move-away will be detrimental to the child, the non-moving parent may then request a change of the current custodial arrangement. If the non-moving parent requests a change in custody based upon the moving parent’s move-away request, the non-moving parent must prove that a change in custody is in the best interest of the child.
In considering what is in the best interest of the child in custody cases, courts generally rely upon California Family Code Section 3011. However, the LaMusga court decision altered the best interest standard for move-away cases. In making any determination with regards to move-away cases, including the best interest standard for a change in custody, the family law courts will evaluate the following factors:
1. The distance of the move;
2. The age of the child;
3. The child’s interest in stability and continuity in the custodial arrangement;
4. The child’s relationship with both parents;
5. The relationship between the parents;
a) Their ability to communicate and cooperate effectively; and
b) The willingness to put the interest of the child ahead of their own.
6. The wishes of the child if they are mature enough for such an inquiry to be appropriate;
7. The reasons for the proposed move;
8. The extent to which the parents are sharing custody.
It is important to note that while the courts take the above factors into consideration, the LaMusga decision indicated that they should be hesitant in disrupting the stability and continuity of an already existing custodial arrangement. Thus, it has become increasingly difficult to have move-away requests granted.
California Move-Away Attorney
Whether you are requesting or objecting a move-away order, it is imperative that you contact an experienced Wallin & Klarich child custody attorney. Our attorneys have over 30 years of experience in handling move-away cases. We possess the knowledge of the law and attention to detail to help you to obtain a favorable result in your case. With offices located in Orange County, Los Angeles, Riverside, San Bernardino, San Diego, Sherman Oaks, Torrance, West Covina, Victorville, and Ventura, we are always available, wherever you happen to live.
Call us today at (888) 749-7428. We will be there when you call.
Frequently Asked Questions about Move-Away Requests
1) I have primary physical custody of my children. Can I relocate with them to another state without a move-away order?
It depends. If you and the other parent of your children can come to an agreement with regards to child custody and visitation, you can always submit that agreement to the family law court. This includes move-away agreements. However, generally when both parents want to be involved in their children’s lives it can be very difficult to come to an agreement that would allow you to move away with the children. Thus, in many cases the only option is to make a request with the courts.
If you cannot come to an agreement and have not obtained an order from the family law court, you cannot relocate. If you relocate without a court order and deprive the other parent of custody or visitation, you will be subject to criminal penalties and fines under California Penal Code Section 278.5. This is considered a form of child abduction and is a very serious matter. Therefore you should always make sure that you have approval from a court or from the other party before relocating with your children.
2) What if I want to move out of the country with the children? Will I be able to obtain a move-away order?
In recent cases, courts have treated international move-away cases similarly to domestic cases. The courts will consider whether the move is in the best interest of the child and it will be the responsibility of the non-moving parent to show that the move would be detrimental to the child. Courts have granted international move-away requests when the non-moving parent cannot show that the move would be detrimental to the child.
It is important to note that it may not be as easy to obtain a move-away request if you plan on moving out of the country. If the non-moving parent has an ongoing relationship with your child, then it may be very easy for them to show that a move out of the country would frustrate the relationship and continuing contact with both parents, thus being detrimental. While all move-away cases create complex legal issues, an international move-away case would be more complex. You should not attempt to obtain move-away orders without the assistance of an experienced child custody attorney.
3) If I do not have primary physical custody of my child, how can I obtain primary custody so that I can request a move-away order with my child?
If you would like to obtain primary physical custody of your child, you must petition the court to make a modification to the child custody orders. Child custody modifications can be very complex. You will have to show that there has been a substantial change in circumstances since the child custody orders were made in your case.
Only after you have obtained primary physical custody of your child can you make a request for a move-away order. The process for both of these petitions is very difficult, and you should only attempt to make these requests with an experienced child custody attorney.
4) My child’s other parent has a court ordered visitation schedule. He or she has not exercised his or her visitation rights since the orders were made. Do I still need a move-away order?
Yes. The fact that a parent does not exercise their visitation rights does not mean that they have given up those rights. While it may be a factor that you can use in obtaining your move-away orders, you will still need to make a request with the court before relocating with your child. By relocating with the children, without a move-away order, you are interfering with the other parent’s rights to visitation, which can result in criminal penalties and fines as stated above.
5) If I make a request for a move-away order, can I lose primary physical custody of my child if the request is denied?
When making a determination with regards to a move-away order, the court must consider whether the relocation is in the best interest of the child. If the other parent can show that the relocation is detrimental to the child, they may request a change in primary physical custody based upon your request for a move-away. While it is unlikely that you will lose primary physical custody just by making the request, unless there is some significant change in circumstances, you could lose primary physical custody if you proceed with the move. The court will evaluate whether it is in the best interest of your child to change the custody orders if you move away.
6) Where can I find an experienced Move-Away Attorney?
Move-away cases are very complex legal matters. Move-away cases can be particularly frustrating, because the law can be very confusing and move-away orders can be difficult to obtain if both parents want to be involved in their child’s life.
At Wallin & Klarich, we approach every case with the belief that our clients could be one of our own family members. Our experienced family law attorneys are committed to handling our cases with the utmost care, as well as being available to our clients at all times. With offices located in Orange County, Los Angeles, San Diego, Riverside, Torrance, West Covina, Sherman Oaks, Victorville, San Bernardino, and Ventura, Wallin & Klarich will always be available to you wherever you happen to live.
To speak with a Wallin & Klarich family law attorney today, please call (888) 749-7428. We will be there when you call.