A parent cannot just pick up and move at anytime they want with a child. A move away case is within the realm of custody and the idea is to determine whether it is appropriate for one parent to relocate to a different geographic area with the child and how the move impacts the relationship of the child with both parents.
The case we often rely upon to determine whether a move away is appropriate, whether it is detrimental to the minor child(ren) is LaMusga. If you are the primary caretaker of the child, meaning you have physical custody of that child 50% or more, you do have an advantage when it comes to the move or your request for a move.
Keep in mind if you are intending to move the child you have an obligation, in our view, to notify the other parent ahead of time that you’re planning to make the move. That allows them to take legal action if needed to have the court address the move.
Note while a Divorce or Paternity matter is pending there are automatic temporary restraining orders that preclude either parent to move a child out of the county in which the case is located without the written consent of the other parent. Therefore if you’re in the middle of litigation and you decide you want to move the geographic residence of the child you can’t do it unless you get a court order.
That is different if your Paternity or Divorce matter is over or it’s been completed and now you want to change the geographic area of the child and, let’s say, you have primary custody. Even in such a case generally the order the court made in your case will typically have a provision that provides the neither parent can change the resident or relocate a child without giving notice to the other parent that their intend to do so which again triggers the litigation because the party opposing the move would go to court on a ex-parte basis and ask the court to make an order to preclude the other parent from moving the child until there is a an evidentiary hearing to determine whether the move is in the best interest of the child.
Factors that the court considers ultimately at a hearing on a move away case.
Distance of the move
These factors would be things such as the distance of the move, i.e. how far are you moving. Is Irvine to Yorba Linda considered a move away? Are you moving from Irvine to Downtown LA or Riverside County or Corona? Obviously in Southern California at least given our traffic patterns and the amount of time it takes to be on the freeway, even when we’re dealing with a 20 to 30 mile drive, the further away someone is moving the more it becomes an important factor in light of the amount of time it would take to get the child back and forth.
Naturally it’s even more of an important factor if somebody is trying to change a state or they’re trying to go to another country. For instance we’ve had clients that want to relocate because their spouse is in the military and they get stationed overseas for at least 2 to 3 years on assignment. The parent would usually have a child from a prior relationship, they have primary custody, they remarry, the new spouse has a job or works for the military and they are being transferred or moved overseas. Another comment fact pattern is the new spouse/partner has a great job opportunity and is being paid to relocate from their current employer and perhaps they will make significantly more and they will be able to provide a better lifestyle for the family.
Age of Children
Another factor the court considers is the age of the children and that’s just common sense.
Relationship between the parents
The relationship the parents have with each other matters as well. Imagine for a moment that you have two parents who are not able to co-parent well with each other. They are living in the same geographic area but they’re already having difficulty seeing eye to eye or putting aside their differences in order to benefit their children, what do you think is going to happen when there are hundred miles away from each other or there are thousands of miles away from each?
Naturally if the relationship between both parents is cordial and they are able to co-parent perhaps the argument could be the moveaway is not detrimental to the best interest of the child because the parents will continue, given their prior ability to co-parent, to communicate well with each other in the best interest of the child.
Relationships with the child
How about the relationship that the parents have with the child, meaning the degree of bonding comparatively with the two parents. So if mom is moving and she happens to be the primary custodial parent, we look at the type of relationship dad has with his son/daughter. If the nature and quality of that relationship is strong and consistent, then the query is whether we are allowing to harm that bond by allowing the child to move away from dad? How will their relationship be impacted? If dad has a great relationship with his daughter in part because they’re not living far from each other what is going to happen when they live really far from each?
On the other hand what if the nature and the quality of the bond is non-existent, or dad is exercising little to no custodial time, then if the move occurs it seems the argument could be it will not make a huge difference because the father was already not involved.
The same goes for the relationship between the children and the mother.
How about the extent of shared custody prior to the move request? That’s where it matters how much time you have or if you’re the primary custodial parent. So again if the parent that wants to move has say 70% or 80% timeshare, they have an advantage when the court is considering that move. The more time the non-custodial parent is able to have with the children the greater the chances of stopping the move.
Anticipating the Future
This is very important when you are considering an agreement on a Divorce. Imagine for a moment that you’re signing a Divorce agreement and you’re choosing to settle your case, should you consider whether or not you either want to move in the future with the child or whether you think the other parent is going to want to move with the child.
What we are getting at, which is something we do for clients, is when you enter into a Divorce or Custody agreement, you have to try to anticipate the future. We ask how will the agreement being signed going to impact the future of that child and the future of that parent. For example when we represent the parent who anticipates a move with their child to another geographic area we do not advise them to enter into a joint custodial arrangement because if they do and they’re not the primary caretaker it’s going to be harder for them to move. If there’s already an agreement in place and there is a history of the other parent exercising custody, having significant amount of the time with the child, again when we represent the party wanting to move we will not advise them to enter into that agreement. Otherwise they would be essentially working against their goal.
What about when we represent the party that anticipates the other one is going to want to make a move? In that case the one who wants to prevent the move must do everything they can to get as much time as opposite. They must address these factors, make sure that they have a stability and continuity of a relationship with their child. They must make sure that they co-parent properly with the other parent; they must make sure that the nature of quality of their bond with the child is great; they need to prove to the court that they have the ability to communicate and cooperate with the other parent; they have to show the court that they have a willingness to put the child’s needs before their own needs.
In essence we can prepare either parent either the one seeking to move or the one trying to block a move. Even before the event occurs we can plan for it.
Now that’s different from a client that comes to us after the fact, meaning they have already entered into an agreement that impacts either parent’s ability to move with the child or they have already completed their divorce and some time (months, years) later they are now asking the court to make the move.
Each case is different, but regardless of where you are we can handle the planning of a move before or after an agreement has being signed.
In our my view it’s not just physical custody that you consider when somebody wants to move with a child, it’s also legal custody. Again consider the example of a parent who is newly remarried and their new spouse who is in the military husband is getting relocated to Japan. The other parent of the child resides in Orange County where they have lived for a long time. The parent who wants to move has physical custody, the parent who remains has a good relationship with the child, exercise their custodial time, goes to work, pays child support. In other words a fairly standard scenario.
How does Legal Custody impact that potential move? If the first parent is going to move or is going to be allowed to move to Japan doesn’t that dilute the ability of the parent who is staying to raise that child? Obviously if you live in two different countries on two different time zones and the child is primarily living in Japan how is the parent who is staying supposed to make a choice on schooling, or have an opinion on religion, or what their child should wear, whether they are allowed to play baseball in Japan. Or maybe the one parent likes to play cricket and, you know, there’s no cricket in Japan.
The point is although we focus primarily on physical custody components when looking at move away cases, the distance of a move can truly impact of parents right to even raise a child or have input in how that child is raised which brings up the next point. When you’re moving away or if you’re seeking permission from a court to move away, assuming that move is far enough, perhaps you should ask the court to modify the provision for joint legal custody.
Otherwise let’s look at it from the perspective of parent who moved. Are we really expecting that parent, for every little decision regarding that child, to pick up the phone or Skype with the other parent and ask “Hey I’m about to buy this type of clothing for our daughter/son is this acceptable to you? Hey I signed up our kid for elite martial arts and is that acceptable to you? How about this new dentist I found? Hey I am in a country where they don’t believe in medicine is that ok with you?” The reader may find this funny, however the point is there are always two sides to this.
The person who has now moved is going to have a hard time complying with the court order to give choices to the other parent and to involve them simply because of the distance and it’s just not practical. On the other hand the one who is trying to prevent the move is saying “I’m being marginalized I’m not being allowed to spend time with my kid and I can’t even make decisions.”
Reason for the move
The reason for the move is another factor when the court is deciding on a move-away case. Why are you moving? What if one parent is married to a well decorated military individual who without choice is being relocated. This new spouse is a responsible family person, they have essentially adopted a child who is not theirs and they’re asking the court for permission to move with that child to the Middle East or Asia from Orange County. Does it matter that they are in the military? Yes. Does it matter the reason for the move is noble? Yes. Does it matter the reason for the move is without choice? The other parent is not just saying “I want to move to Tunisia because I like the weather there.” They are saying “I have to, I would like to be with my spouse and it just happens that I have a mixed family and my new spouse doesn’t have a choice in moving so that’s why I want to move.”
Counter-argument: Are they being selfish? Are they really looking into the best interest of the child? Is it in the best interest of the child to move to a country where they child do not know the language, they do not understand the culture?
Child Custody 730 Evaluation
On the one of the issues that comes up on move away case is when either parent requests a Child Custody 730 Evaluation. It is actually a fairly good tool to use to determine whether the move is appropriate.
So let’s go back again to the previous factors: stability and continuity of the custodial relationship, the distance of the move, the ages of the children, the relationships with both parents, the relationships between the parents, the ability to communicate and cooperate, willingness to put needs of the children before their individual interests, the child’s preference if they can express a knowing and mature preference, the reasons for the move and the extent of shared custody prior to the move. A judge can say this is a fairly complicated issue that is going to require a lot of time and evidence. Therefore rather than the judge doing the work they can appoint an expert who is going to go through these 10 factors, interview the parents, interview the neighbors, do the research and in a nice compact summary present a report to them to tell them what’s appropriate and then there will be a shorter hearing to decide whether the move is appropriate.
The idea that an expert is going to look at these things from a mental health point of view as well and give an opinion to the court is attractive. A Child Custody Evaluation is not uncommon when there’s a move away case, in fact it is a good tool to use.
Now who is most likely for a child custody evaluation in the event of a move away? The parent opposing the request. The parent wanting to move with the child is not going to be interested in a three to four month evaluation to take place to determine whether the move should occur. The parent seeking to move wants to have that hearing as soon as possible regarding these 10 factors. The parent trying to slow down the move or really wants to go through each factor and wants to make a case for why they should have custody is the one who is going to request the 730 Evaluation.
Something to keep in mind then is all of this discussion brings up the following issue: if you intend to move please think about it early. The earlier you dress the issue the better it is. If you can address it during the Divorce that’s better and waiting on the Divorce.
Risk of Losing Primary Custody
If you’re going to suggest that you want to move the child to a different geographical location you need to think long and hard about these factors before you pull the trigger and ask the court to move. Why? Because there is no such thing as a conditional move away. If parent A decides to move the child to a different geographical location and essentially states that, when they and parent B end up in court in a evidentiary hearing to determine and consider those factors, and whether the child is going to be allowed to move, the court is going to presume that parent A has already moved. Therefore when the court is doing their analysis visualize it this way: parent A is already in Japan, parent B is in Orange County, the child is in the middle. Now the court has to decide whether the child is going to go to Japan or Orange County? That’s significant because you don’t get to change your mind in the middle of that hearing, or after the court makes the decision, without consequences. For example if the judge decides it is in the best interest of the child to remain in Orange County you can’t say “Judge based on your decision I am no longer going to move. I am going to stay in Orange County. Thank you, can we go now. ” No, you can’t go. You asked the court to determine the best interest factors for a move away and we ran the analysis assuming you’re already in Japan so guess what? “No conditional move away. Go ahead and go to Japan or stay, but since we’re going to make this analysis assuming you’re in Japan we are now flipping custody.” Parent B is going to be the primary custodial parent because you are now “supposedly” in Japan. Parent A is now going to have visitation.
So there is no such thing as “Oops you’re not allowing me to move with the child, I don’t want to move.” The court is not going to make an order that impacts your freedom to move. It is your fundamental right to go wherever you want as an individual. However while you are free to go wherever you want as an individual parent you are not free to move a child with you unless the court says that move is in the best interest of the child. To get people to think seriously about whether to move is a good idea the court kind of have this concept of we’re going to assume you’ve already moved so if we happen to say that the move is not in the best interest of the child then the next step is going to determine what order is in the best interest of the child. All of a sudden parent B can end up with primary custody and and that is often what parent B will argue. Parent B is able to come to court and say 1) the move is not in the best interest of my child for these 10 factors and 2) when you make the conclusion it’s not in the best interest of my child I want primary custody because we’re going to have to assume that parent B is no longer here.