Relocating with Children After Divorce
Handling Complicated Move-Away Cases
A parent cannot just pick up and move at any time they want with a child. A move-away case is within the realm of child 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 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.
That is different if your paternity or divorce matter is over or if 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, the order the court made in your case will typically have a provision that provides that neither parent can change the resident 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 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 were 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 in order 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 really far 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.
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
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 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.
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, then 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 and having 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 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 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 some time 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 being 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 parent who moved. Are we really 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 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 or 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
- The 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
- 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 really 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 your free initial consultation with the out-of-state and international custody lawyers at Moshtael Family Law in Orange County. Call (714) 909-2561 or contact us online.
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