November 19, 2014 By Paul Wallin

If you are considering moving away with your children after a divorce, you will be required to show the court why you believe you should be allowed to move. The main question courts consider in all cases that involve children is, “What is in the best interest of the child?”

In order to succeed with relocation, you must show that the relocation is in the best interest of your child.

Do You Have Custody of the Child?

Child custody move away
You can move away with your child if you have sole physical custody.

If you are headed toward the initial custody determination, you should request sole physical custody of your child. A parent who has sole physical custody is allowed to move away with the child. The exception is the parent is not allowed to move if the court considers the move detrimental to the child (California Family Code Section 7501 (a)). If it is likely that you will split physical custody of your child with your former spouse, you should ask that the custody order contain no move away restrictions.

If there is already an existing shared custody arrangement in place, you will need to seek a modification of the order. If one parent has physical custody of the child for more than 60% of the time, that parent will be presumed to have the right to move the child without the other parent’s consent.

If you are a non-custodial parent, you can prevent the relocation by showing the court that the move is being made in bad faith or is motivated by the custodial parent’s wish to decrease or eliminate your contact with the child, or the move would be detrimental to the child. The court will consider the effect the move will have on the child’s relationship with you. The parent who is not requesting the move has the right to request that a court-appointed expert perform a child custody evaluation.

8 Factors in Move Away Cases

When requesting move away orders, you should provide facts regarding eight factors related to your relocation request. The court will consider these and other factors as necessary to make its decision (Marriage of LaMusga (2004) 32 C4th 1072, 1094, 12 CR3d 356, 372):

1)      Your child’s interest in stability and continuity in the custodial arrangement;

2)      The distance of the move;

3)      The age of your child;

4)      Your child’s relationship with both parents;

5)      The relationship between you and your former spouse, including your ability to communicate and cooperate effectively, and your willingness to put the interests of your child above your own interests;

6)      The wishes of your child, if your child is mature and an inquiry would be appropriate;

7)      The reasons for the move; and

8)      The extent to which you and your former spouse currently share custody.

If you and your former spouse share physical custody of more than one child, the court will determine what would be in the best interest of your children as a group.

6 Tips to Modifying Child Custody Orders

You should take the following steps when requesting modification of an existing custody order.

1. File a motion for modification at least 4 months before the move. This will allow the court enough time to schedule a hearing on the motion. Do not wait until the end of your child’s summer vacation to file.

2. Document all the reasons for your request, including:

  • Gather paperwork showing the reason for the move, such as an employment contract for a new job
  • Collect documents to show that you will have a regular, stable source of income after the move
  • Document when your ex-spouse has actually seen or talked to your child
  • Document your attorney’s attempts to communicate with your former spouse or his or her attorney to resolve the issue
  • Provide all of these documents to your attorney for review. Your attorney will then submit these documents to the court.

3. Do not interfere in the relationship between your child and your former spouse.

4. Do not talk badly about your former spouse to your child.

5. If possible, move to a location where you will have extended family that will help care for or at least have contact with your child.

6. Retain an experienced child custody attorney immediately to represent you. Child custody move away cases are extremely complicated, and you will need the expert advise of a child custody lawyer to obtain a favorable result.

Before using litigation to request move away orders, consider setting up a meeting with your former spouse and your attorney. Your attorney can help you seek out a mediator, a collaborative child specialist, or a divorce coach so that you and your ex-spouse can handle matters in a way that is likely to reduce costs and lower tension.

Call the Family Law Attorneys at Wallin & Klarich

If you are interested in obtaining move away orders for you and your child, you need to speak with an experienced family law attorney immediately. At Wallin & Klarich, our skilled family law attorneys have been successfully handling move away and child custody cases for over 30 years. Let us help you today.

With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is an experienced Wallin & Klarich family law attorney available no matter where you work or live.

Call us today at (888) 749-7428 for a free telephone consultation. We will be there when you call.

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