Many clients contact me asking how the court orders involved in a custody case impact their right to move out of the county or out of the state, whether it is for a new job, being closer to family, or due to the high cost of living in San Diego. While a divorce is pending, automatic orders are in place prohibiting a parent from traveling with the children out of the state, let alone moving with them. Even after a divorce or paternity case is finalized, most orders prohibit a parent from moving the children outside the County of San Diego without a court order or agreement with the other parent. So how do you go about being able to move?
The move away process is rather complicated in California, and is dependent upon the previous orders in the case. Obviously, the court will take special consideration in move-away cases since the decision, by its nature, will result in one parent being away from the children. The court has to assume that the moving parent will move, with or without the kids, and that the non-moving parent will stay, with or without the kids. The court MUST send the parents to mediation before making the decision.
If there has not been a previous "final custody determination," the court must use the best interest standard. In other words, the court must determine whether it is in the best interest of the children to 1) go with the moving parent, and be away from the other, or 2) stay with the non-moving parent and be away from the moving parent. A "final custody determination" means that there has been a final custody order made, rather than a temporary order while a case is pending.
Once a final custody order is in place, the standard changes. The standard depends upon the custody order existing at the time. If the moving parent has sole (or substantial majority) custody, the moving parent has a presumptive right to move absent bad faith. The only way to prevent the move is if the resisting parent shows detriment.
If the current custody order is a shared custody plan, the court is required to analyze the "LaMusga Factors" These factors are termed after the court case that set forth the factors a court must consider. These factors are:
1. Stability and continuity of custody arrangement
2. Primary parent’s proven ability to care for child
3. Whether there is a significant change of circumstances indicating a custody change is in best interests of child
4. Distance of move
5. Financial impact on parents
6. Age of children
7. Child’s relationship with parents
8. Parental Relationship
9. Child’s Wishes
10. Reason for move, including good faith
11. Extent to which parents are currently sharing custody
12. Nonpayment of support by stay-behind parent
13. Impact on mental stability of parents if relocation is permitted or denied
14. Availability of special education and medical care facilities
15. Level of parental animosity and past conduct as indicator of the best future arrangement
Once the court makes a decision regarding the move, there is an automatic 30 day "stay" to allow the other parent to appeal the decision. That means that the moving parent cannot move for 30 days following the decision. Given that custody is required, a full trial on the issue is basically mandatory, and there is an automatic 30 day stay, the process itself takes a lot of time so it's important to start it well ahead of the date of the actual move.
-Tess Reutzel, Esq.
The information in this article is for general information purposes only. Nothing in this article should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.