Moving Away With The Children
A parent making the decision to attempt to move the kids to a new town, county, or state is fraught with difficulties and hard on everyone involved. People who want to move away with the kids have probably remarried, been presented with a new job opportunity, or maybe they moved to California some time ago and now want to move back in order to be closer to their family. Parents who want to prevent a proposed move away do not want to be separated from their children and they think the move will be bad for their kids. The reasons each parent may have are usually pretty straightforward. Unfortunately, the legal process is decidedly complex.
For most people, these cases can take a steep emotional toll, which is why you need an attorney on your side. Maybe more than any other type of family law case, the importance of having someone in your corner, but who can also view your case from an objective perspective cannot be understated. You need to know exactly what you’re dealing with here.
So the question remains: can one parent move the kids away when the other parent does not consent to the move-away? The unsatisfying answer to that question is it depends.
California Family Code 7501 states:
(different font) A parent entitled to the custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child.
But what happens, as is so often the case, when there is a joint custody arrangement? A situation where one parent has the kids 100% of the time and the other parent hasn’t been seen in years is pretty easy. Most likely a court would grant the sole custodial parent permission to move the kids—the abandoning parent probably wouldn’t show up to fight the move anyway. However, this almost certainly does not describe your case.
What factors will a California court consider in deciding whether or not to allow a move away? The following are just a few and by no means represent all of the factors a court will consider.
The best interest of the children is the first and foremost factor. In other words, is the health, safety, and welfare of the child better served by the proposed move away? Conversely, will the move be detrimental to the children?
Will the move be able to provide for continuity and stability within the custody arrangement?
To what extent would the move, if granted, disrupt the established arrangement and will it endanger the parent-child relationship by severing emotional bonds?
How old are the kids? Remember that depending on age and maturity, a court should give due weight to the wishes of the children if they’re old enough to properly give their opinion on the matter.
Is the court ordered custody arrangement being adhered to by both parents? This is important because often, as time goes on and the kids get older, they may end up spending more time with one parent than what was initially agreed upon. Take the following for example:
When Harold and May got divorced, they had two children together. At the time of the divorce, the kids were just 3 and 5 years old. Because Harold was the breadwinner, he spent less time with the kids while May stayed at home attending to domestic duties. Following the divorce, in order to provide timely spousal and child support, Harold had to work even more hours. This resulted in a court ordered custody arrangement wherein Harold and May agreed that Harold would see the kids one night during the week and every other weekend—an approximate 75/25% timeshare. Now though, it’s five years later and due to various circumstances, the kids stay with Harold about half the time and with May the other half. Harold has just received a notice from May’s attorney stating that she plans to move the kids to Texas because her new spouse has chosen to accept a lucrative job offer there.
What will happen here? Unfortunately, it’s impossible to say because there are so many facts we don’t know. But it is a relatively common scenario under which both parents are probably going to fight as hard as they can to get what they want because the stakes couldn’t be higher.
As I said at the beginning, it is simply not possible to cover all of the factors that can be involved in a move-away case, and you do not want to let any stone go unturned in order to protect what you think is in the best interests of your kids.
If you are facing this situation, even if you don’t call me, call another attorney. This is not something you want to handle on your own.
This page is not intended to contain legal advice and does not establish the existence of any attorney-client relationship.