Move-away Custody

Bulletin!!!

The California Supreme Court has just, once again, dramatically altered the rules regarding whether one parent can move away with a child.

California law has recently undergone a dramatic change with regard to how the court will treat a custodial parent's request to move to another city or state.  We will give a brief overview of these changes on this page.

The court's 6-1 decision gives parents who lack custody — generally fathers — more legal weapons to fight to keep their children close, and weakens the right of custodial parents — usually mothers — to move to take a better job or for some other reason. Judges must consider "the likely impact of the proposed move on the non-custodial parent's relationship with the children" as one of the factors in deciding whether to approve a move, Justice Carlos R. Moreno wrote in the court's decision. The court stated:

"As explained below, we conclude that just as a custodial parent does not have to establish that a planned move is “necessary,” neither does the noncustodial parent have to establish that a change of custody is “essential” to prevent detriment to the children from the planned move.  Rather, the noncustodial parent bears the initial burden of showing that the proposed relocation of the children’s residence would cause detriment to the children, requiring a reevaluation of the children’s custody.  The likely impact of the proposed move on the noncustodial parent’s relationship with the children is a relevant factor in determining whether the move would cause detriment to the children and, when considered in light of all of the relevant factors, may be sufficient to justify a change in custody.  If the noncustodial parent makes such an initial showing of detriment, the court must perform the delicate and difficult task of determining whether a change in custody is in the best interests of the children. "

The full ramifications of the decision will be tested in future cases. The full text of the decision can be found at Marriage of LaMusga.

Previously, the California Supreme Court issued its opinion in the case of Marriage of Burgess (click the link for the full text). We provide the analysis of Burgess because the LaMusga case purported to correct a lower court's misinterpretation of Burgess. Therefore, the court is saying Burgess remains in effect.

 Prior to that case, it had generally been held that a custodial parent had to prove that their move was for good faith reasons and would be in the best interests of the child.  Often, this frustrated the intended move and forced the custodial parent to remain in the original location, sometimes at great hardship.

Current law reverses the process.  It is now up to the non-custodial parent to show that it would not be in the best interest of the child to permit the custodial parent to move, retaining custody.  There is no longer a need for the moving parent to show they are acting in good faith, although if it can be shown that such a parent is moving in order to prevent contact with the other parent and child, the court may switch custody to the remaining parent.

In a provocative footnote, the Court indicated that where parents had joint physical custody and care of the child, the law might still require a showing by the moving parent that the move would be in the best interests of the child. As a practical matter, few divorced parents have true joint care and physical custody.  

When is Court Approval Required?

Whenever there is an existing court order regarding custody and visitation, and if the move would require a change in that order, the moving parent will need to go to court to modify the order.  The procedure for this is called an Order to Show Cause for Modification.

Where a divorce action has just been filed, and prior to any hearing on the matter, there is an automatic court order not to remove the child from California.  However, prior to the filing of a Petition for dissolution, there is no such restriction.

It is expected that most courts will grant a request by the moving parent to make any modifications of the visitation plan that are necessary to accommodate the move.  A strategy for obtaining such an order would include a declaration by the moving parent as to why they are moving in order to defeat any claim by the other parent that the move is done merely to defeat their visitation.

A parent who opposing the modification must now show that there is some detriment to the child, other than that which naturally flows from the move itself, caused by the move.  Examples might be that the child would move to a bad neighborhood, poor schools, etc.  It would not be enough to show that the child would lose friends and contact time with family.  That is inherent in any move and the courts have held this kind of harm is insufficient.