April 3, 2015
Custody and Visitation: Moving Out of State with the Children
Move Away: The Formal Request to Relocate the Children Out of State
There are many reasons that people want to move out of California or San Diego with the children—a job opportunity, reduction in cost of living, to move closer to family, etc. Given the enormous military presence in San Diego, couples and children are often living in San Diego out of obligation and not by choice. When a relationship ends, the non-military spouse may want/need to return home and wants to take the children with them.
The question is: Can a parent move out of state with the children?
Restrictions on Moving and Traveling Out of State with the Children
As soon as a case is opened with the Court and served on the other parent, the Standard Family Law Restraining Orders take affect and restrict a parent’s ability to travel and move with the children outside the State of California without the other parent’s permission or approval from the Court.
The Family Court will not dictate where a parent may travel or live. However, the Family Court will have a say on whether the children can go.
How is a Move Away Analyzed?
1. Best Interests of the Children vs. Changed Circumstances.
Generally, custody and visitation are analyzed under the framework of the “best interest of the children” standard for initial decisions, or whether there has been a “change in circumstances” from the prior order warranting a modification of the custody.
2. Who is the primary custodial parent?
If the parents have a true shared physical custody arrangement (ie. 50-50), there is no primary custodial parent. In this case, the Court will analyze whether a move away should be granted under a “best interest of the child” analysis.
The primary custodial parent (the parent with more than 50% time with the children) has a presumptive right to relocate with the minor children. (Family Code § 7501.) However, this is just a presumption, not an absolute right to move. If the other parent wants to argue against the move, they must show the Court that there would be a detriment to the child if they relocate.
3. The “meat and potatoes” of the analysis: LaMusga and Burgess cases
Regardless of the framework for the analysis (best interest or changed circumstances), the two pivotal cases addressing move away cases are Marriage of LaMusga (pronounced “La-mu-shay”) 32 Cal. 4th 1072, and Marriage of Burgess 13 Cal. 4th 25. In both cases, the Court considered all relevant factors including but not limited to the following:
• The children’s interest in stability and continuity in the custodial arrangement;
• The distance of the move;
• The children’s age;
• The children’s relationship with both parents;
• The relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the children’s interests above their individual interests;
• The children’s wishes if they are mature enough to make that inquiry appropriate;
• The extent to which the parents currently are sharing custody.
How do I tell the Judge my Position?
Each party will have an opportunity to tell the Judge their position through declarations (written statements), testimony, and oral argument at the hearing. Parents are entitled to a trial on the move away request, where they can present all evidence and testimony to support their position.
Often the most important item the Court will consider is the Family Court Services report. Parents are required to attend Family Court Services (FCS) on all custody and visitation issues. FCS is a mediation service provided by the Court. Only parents are allowed to attend Family Court Services, even if the parents are represented by attorneys. The mediator will speak with both parents and write a recommendation for a custody and visitation plan, including whether he/she supports or opposes the request to move.
All parties, attorneys, and the Judge will have an opportunity to review the report before the hearing or trial.
Will my child get to say what they want?
One of the factors of the analysis is what the child wants. However, there are many factors that have to be considered first: how will that opinion be communication, how old is the child, their maturity level, why do they want to be with one parent over the other, etc.
In general, any child age 14 or older can voice their opinion regarding where and who they want to live with and why. Although children can testify in Court, most Judges in San Diego shy away from bringing a child into the courtroom for obvious reasons. Children have a hard enough time going through a divorce and feeling like they are caught between their parents. It would be an understatement to say it would be stressful for a child to sit in a courtroom, in front of a Judge in a black robe who is sitting up high on a podium, while their parents are in the background watching and waiting for the child to say who they want to live. In general, being in Court is stressful for most adults, let alone a child. For this reason, most Judges do not have children testify, or at minimum, use it as a last resort.
Instead, children’s opinions are most often communicated through an interview with a mediator at Family Court Services and then incorporated into the Family Court Services report. Other avenues for children to voice their opinion are through minor’s counsel (attorneys specifically appointed to represent the interests of the children) or a custody evaluator (a psychologist/psychiatrist appointed to investigate the custody issue).
The child’s opinion will be considered by the Court, but that does not mean the Court will order exactly what the children want. Again, this depends on the age and maturity of a child. If they want to live with one parent because that parent lets them go to bed late and eat junk food for dinner, this does not mean it’s best for the children.
Overall, it is safe to say that every Judge would agree move away cases are the most difficult cases that come across their docket. Whether you are requesting or opposing a move away request, it is important to understand the factors and analysis the Court will make to determine the outcome and consult an attorney to discuss your legal strategy.
DISCLAIMER: The above article is for informational and educational use only and is not intended to be legal advice in any way. If legal advice is needed, one should contact an attorney directly.