Move Away Orders in Orange County, CA
California Child Custody Laws for Moving Out of State
Parents with joint custody cannot move any time they want. In California,
move-away cases determine whether or not it is appropriate for a parent
to relocate to a different geographic area with their child and how the
move would impact the child’s relationship 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 the LaMusga case.
If you are the primary caretaker of the child, meaning that you have physical
custody of that child 50% or more, then you do have an advantage when
it comes to the move or your request for a move.
Keep in mind that, if you are intending to move the child, then in our
view you have an obligation 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.
Temporary Restraining Orders for Move-Away Cases
Note that, 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, then you can’t do it
unless you get a court order.
This is different if your paternity or divorce matter is over, you have
primary custody of the child, and now you want to change the geographic
area of the child. Even in such a case, the court order will typically
have a provision that neither parent can change the residency or relocate
a child without giving notice to the other parent of their intention to do so.
This again triggers litigation, because the party opposing the move away
would go to court on an ex-parte basis and ask the court to make an order
to preclude the other parent from moving the child until there is an evidentiary
hearing to determine whether the move is in the best interest of the child.
Factors the Court Considers During a Move-Away Case Hearing
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 L.A. or Riverside County or Corona?
Obviously in Southern California, given our traffic patterns and the amount
of time it takes to be on the freeway even with a 20 to 30-mile drive,
the further away someone is moving becomes an important factor due to
the time it would take to transfer the child back and forth.
Naturally, it’s even more of an important factor if somebody is trying
to move out of state or if they’re trying to relocate to another
country. For instance, let's say our divorce lawyers have 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. In another
example, a parent has a child from a prior relationship and was awarded
primary custody, but they remarried and their new spouse has a job or
works for the military and is being transferred overseas. Another common
factor is when a new spouse/partner has a great job opportunity and is
being paid to relocate away from their current employer and perhaps they
will make significantly more money and will be able to provide a better
lifestyle for the family. These are all prime examples of when a move-away
case may be necessary.
Age of Children
Another factor the court considers is the age of the children. That is
simply common sense.
Relationship Between the Parents
The relationship that 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. They are living in the same geographic area, but they’re already
having difficulty seeing eye to eye or putting aside their differences
to benefit their children. What do you think is going to happen when they
are hundred or thousands of miles away from each other?
Naturally, if the relationship between both parents is cordial and they
are able to co-parent, then perhaps the argument could be that the move-away
is not detrimental to the best interest of the child because—given
their prior ability to co-parent—the parents will continue to communicate
well with each other.
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?
If mom is moving and she happens to be the primary custodial parent, then
we look at the type of relationship that the 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 harm to 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, then what is going to happen when they
live farther from each other?
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 that 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.
Custodial Time
How about the extent of shared custody prior to the move request? In these
cases, 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, then 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 After Parental Relocation
This is very important when you are considering an agreement during 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 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 is that, when you enter into a divorce or custody
agreement, you have to try to anticipate the future, which is something
we do for clients. We ask how the agreement being signed will impact the
future of that child and the future of that parent.
Moving with Joint Custody in California
For example, when we represent the parent who anticipates moving out of
state with their child, we do not advise them to enter into a joint custody
arrangement, because if they do and they’re not the primary caretaker,
then it’s going to be harder for them to move.
How Far Can I Move with Joint Custody in CA?
If there’s already an agreement in place and there is a history of
the other parent exercising custody and having a significant amount of
the time with the child, then 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 parent
is going to want to move away? In that case, the one who wants to prevent
the move must do everything they can to get as much time as possible.
They must address these factors and make sure that they have the 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 and the quality of their bond with the child is great.
They also need to prove to the court that they have the ability to communicate
and cooperate with the other parent and that they have a willingness to
put the child’s needs before their own.
In essence, we can prepare either parent—the one seeking to move
or the one trying to block a move. Even before this happens, we can plan for it.
Now this is different than a client that comes to us after the fact, meaning
that 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 sometime later (months, years) 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 been signed.
Legal Custody & Move-Aways
In our 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, 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, exercises their
custodial time, goes to work, and pays
child support. In other words, a fairly standard scenario.
How does legal custody impact this potential move? If the first parent
is going to move or is going to be allowed to move to Japan, then doesn’t
that dilute the ability of the parent who is staying in Orange County
to raise their child? Obviously, if you live in two different countries
in two different time zones and the child is primarily living in Japan,
then how is the parent who is staying supposed to make choices about schooling,
religion, what their child should wear, or 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 that the distance of a move can significantly impact a parent's
ability to raise their child or to have input in how their child is raised,
which brings up our 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, then it may be best to ask the court to modify the provision for
joint legal custody.
Otherwise, let’s look at it from the perspective of the parent who
moved. Are we expecting that parent to pick up the phone or Skype with
the other parent for every little decision regarding that child?
- "Hey, I’m about to buy this type of clothing for our daughter/son.
Is this acceptable to you?"
- "Hey, I signed our kid up for elite martial arts. Are you alright
with that?"
- "How about this new dentist I found for our son/daughter?"
- "Hey, I am in a country where they don’t believe in medicine.
Is that okay with you?”
The reader may find this funny, but the point is that there are always
two sides to this issue.
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 due to the distance. 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 in their best interests.”
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 that
the reason for the move is noble? Yes. Does it matter that the reason
for the move is without choice? Yes.
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 because
I would like to be with my spouse and it just so 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 looking into the best interest of the
child? Is it in the best interest of the child to move to a country where
the child does not know the language or understand the culture?
Child Custody 730 Evaluation
One of the issues that come up on move away case is when either parent
requests a Child Custody 730 Evaluation. It is 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
- The willingness to put the 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
- 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 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.
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 as give an opinion to the court, is attractive. A
child custody evaluation is not uncommon when there’s a move away case. It is,
in fact, a good tool to use.
Now, who is most likely to be selected 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 determine whether the move should
occur. The parent seeking to move wants to have that hearing as soon as
possible. The parent trying to slow down the move or who wants to go through
each factor and 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 is that all of this discussion brings up the
following issue: if you intend to move, then please think about it early.
The earlier you address the issue, the better. If you can address it during
the divorce, then that is better and waiting until after the divorce.
The Risk of Losing Primary Custody
If you’re going to suggest that you want to move your child to a
different geographical location, then 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, then when they and Parent B end up in court
in an 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, and 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, then 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.
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 moving is a good idea, the
court 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 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 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, then I want primary custody because
we’re going to have to assume that Parent A is no longer here.
Schedule a consultation with the out-of-state and international
custody lawyers at Moshtael Family Law in Orange County. Call or
contact us online!
