What is a move-away?
This occurs when a parent that has joint or sole custody of the child decides to move to a location that is far enough way to disrupt the current custody arrangement. Often times this results when a parents wants to move the child out of the County that they current reside in. If this happens, and a custody order will be disrupted, the parents will need new custody and visitation orders. The goal, however, is to create an arrangement that will be best for the children and allow them to have a continuing relationship with both parents. The court in these types of cases will not determine whether a parent can move away, but whether a child may move with that parent.
What happens when a parent wants to move-away with a child?
Typically, when a parents wants to move to a location that will disrupt the current custody order, he or she will file a motion to modify the existing custody/visitation orders. Before the parents appear in front of the judge, however, they will attend a mediation at Family Court Services. Here, the parents will sit down with a mediator and try create a new custody and visitation plan that both parents can agree upon. If the parents cannot reach an agreement, then they will attend a hearing where the court will then set a new custody and visitation order.
Do I have a right to move-away?
It is important to remember that you do have a Constitutional right to move. In a move-away case, the court will determine whether the child should move with the parent, and what the new custody and visitation orders should be.
What California law should I be familiar with?
"The Burgess Decision"
In this case, the Mother wanted to move with the children forty minutes away, from Tehachapi to Lancaster, another County in California . The court held that this move was okay, so long as the moving parent showed that the move would be in the child's best interests. In other words, the child will likely be permitted to move unless this would prove detrimental to the child. The court concluded that unless the move is based on a "bad" reason, such as to deliberately interfere with a child's time with the other parent, a move away order would be granted.
"Marriage of Lamusga"
This move away case is pivotal because it expanded the court's decision in Burgess, as explained above. The Supreme Court held that the following factors should be considered when deciding whether to modify an existing custody and visitation order in light of a move away:
•· Child's interest in stability and continuity in the custodial arrangement
•· Distance of the move
•· Age of the child
•· Child's relationship with both parents
•· Relationship between the parents including ability to communicate
•· Wishes of the child if he or she is mature enough
•· Reasons for the proposed move
•· Extent to which the parents are sharing custody
Family Code Section 3020
Under this code, the child should have frequent and continuing contact with both parents, who are to share the rights and responsibilities of raising the child. Additionally, any change in custody and visitation orders should be made in the interests of the welfare and safety of the child and all family members.
Family Code Section 3011
This section presents more factors that the court will look to when determining whether the modify the existing custody or visitation orders. Such factors include:
•· The health, safety, and welfare of the child
•· Any history of abuse by one parent or any other person seeking custody against the child, other parent, spouse, relative, etcetera.
Family Code Section 3087
A current custody and visitation order may be modified if the parties show that such modification is in the best interests of the child.
What do courts consider in move-away cases?
The court's number one concern is always the best interests of the child. The court takes into consideration the above mentioned law, as well as determines whether the child will suffer a detriment should he or she move away with the parent. Additionally, the court considers the interest of the non-moving parent, and whether a move would interfere with a parental relationship. For example, significant physical separation may make weekly or monthly visits unfeasible and could substantially interfere with maintaining a relationship. Conversely, the court will also take into account the factors that would make a move away practical, such as to accommodate a new job or educational opportunity. Ultimately, the court will take into account how the move away would prejudice the child and his or her parental relationships as the "Lamusga Factors" as explained above.