Move Away

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Move Away

Move Away (Relocation Of Children)

When a parent has primary physical custody of their child and decides to move their child to a new home in a different city, county, state, or even country, it's known as a relocation or move-away case. In San Diego, a parent seeking to relocate with their minor child must get the other parent's consent or a court order granting their move-away request.

Some complications may naturally surface if you are co-parenting but living apart from the other parent. Relocating or moving out of state requires a judge to consider several factors before they can approve a modification of a previously issued move-away order or custody order. You will need the assistance of an experienced San Diego move-away attorney if you are considering relocation with a minor child.

Whether you are a non-custodial parent seeking to prevent a move-away order or a custodial parent seeking to move with your minor child, you can rely on the expertise and knowledge of the dedicated move-away attorneys at Moshtael Family Law to help you achieve the most favorable outcome possible in your case.

Relocating with Children After a Divorce in San Diego

Under California Family Code Section 7501, a custodial parent can relocate with their child. However, you can only change your child's residence with an order from a family court or an agreement with the kid’s other parent.

In recent years, the state Supreme Court has granted family court judges greater flexibility in denying requests to relocate if the move would harm the child's well-being or rights. Judges can now exercise discretion in various circumstances to protect the child's best interests.

Recent Supreme Court decisions as well as California Family Code Section 7501’s legal provisions have created more significant hurdles for parents in San Diego seeking to relocate with their kids, especially if the relocation could harm the child's well-being or put them at a considerable disadvantage.

It's vital to understand that move-away case rulings are determined case-by-case. The family court in San Diego will consider numerous factors before granting or denying a move-away order. Your case outcome will depend on various aspects, including your unique circumstances, case facts, and the judge assigned to your case. You should seek the counsel of our knowledgeable San Diego move-away attorneys at Moshtael Family Law, who are well-versed in handling these cases successfully.

The Move-Away Legal Process in San Diego

If you are considering relocating with your child, you must be prepared to follow a few necessary steps. The first step in requesting a move-away order is to file a petition with a San Diego family court. The judge will schedule an initial hearing date a few months after you file your request. The period between filing your petition and the initial hearing date allows you and the other co-parent to work out any custody-related issues while discussing the relocation plans.

The San Diego family court may also order a psychological evaluation to assess whether the move and the proposed parenting and visitation schedule changes will benefit the child involved. If you plan to move out of California, you must notify your co-parent of your intention to move in writing at least 45 days before the proposed relocation date.

Although some moves may occur suddenly, promptly informing the other parent of your intention to relocate can significantly affect how the judge evaluates your petition. It demonstrates your willingness to cooperate, communicate with the other parent, and work towards a mutually beneficial solution for your child.

An evidentiary hearing will be scheduled if the other parent objects. Both parents will be granted sufficient time for the discovery process (to help them assimilate evidence and information to bolster their claims.) The hearing typically takes a day, although the family court in San Diego might take a little longer to decide.

The relocating parent will be given a chance to narrate their side of the story first. If the child is emotionally mature enough to decide, the court may also wish to hear from them. The judge will consider both parent's schedules, determining the amount of time they can dedicate to their child based on their current or potential work commitments.

Once the relocating parent has presented their case, the co-parent will get the chance to do the same. They will attempt to show how the relocation will adversely affect the child. They may also try to show that the move is a tactic by the moving parent to cut the child’s ties with the parent staying in San Diego.

Once the opposing parent has made their argument, the relocating parent’s attorney can present a rebuttal. This aspect makes it necessary to have competent legal representation before you file a move-away request.

The judge will make a binding decision after the hearing. Unless there is some "significant" change in either parent's circumstances, there is no chance to modify the existing custody order through an appeals process.

The Best Interest of the Child Standard in San Diego Move-Away Cases

Once our San Diego move-away attorney files your case and you have served the required paperwork on the co-parent, they may want to object and prove that the relocation will affect the child's well-being.

A party can show in several ways that relocation is not in the child’s best interests. The most typical and strongest argument opposing parties in San Diego use is that the move-away would affect the other parent's relationship with the child. In presenting this argument, they will try to prove that the child’s "frequent and continuing contact" with both parents will become difficult or impossible.

This step is crucial in the move-away case for both parents. Without a sound legal strategy and evidence-backed arguments of our skilled San Diego child relocation attorneys on your behalf, the judge might deny your objection to or request for the move-away, resulting in you losing custody of your child.

What Will a San Diego Court Consider During a Relocation Hearing? When Can They Order a Custodial Change?

In move-away cases in San Diego, a custody change is considered appropriate only if the relocation would have a severe negative impact on the child. If one co-parent objects to the move, the court will schedule a hearing to rule whether a change in visitation/custody is appropriate after evaluating the pros and cons of the proposed move-away.

A court won't necessarily order that the child be removed from the custodial parent solely because a relocation will be tough on the kid. Instead, a custody change is considered appropriate if the other parent can demonstrate that it’s in the child’s best interests and the move would be detrimental to their well-being.

The family court in San Diego will determine if a custody change is appropriate while considering several factors, including:

  • The child's need for stability and continuity
  • The distance of the planned move
  • Any adverse impact that would result from a custody change
  • The child's relationship with both the parents
  • The parents' mutual relationship, including the ability to communicate
  • Any effects on the kid's relationship with their non-moving parent
  • The reasons the custodial parent is relocating
  • The child's educational, physical, and emotional needs and how the move can meet them
  • The kid's extended family relationships in their present community and the new place
  • Any other factor/s the court considers relevant to the interests of the child

For example, in one move-way case in California, the father became the custodial parent after the mother moved to Ohio. The mother moved only to live near the neighborhood she grew up in. The father demonstrated that the move would affect the children's well-being since they struggled emotionally after the divorce, and the distance would exacerbate the situation.

The judge considered several aspects, including the children's poor emotional and social skills, the parents' poor relationship, and the significant distance of the move. Ultimately, the judge ruled a custody change could give the children more stability by helping to improve their relationship with their father.

San Diego Move-Away: Frequently Asked Questions

Can I relocate out of state with my kid without my ex's consent?

As the custodial parent in San Diego, you can relocate your child out of state legally. Based on this, your ex-spouse can dispute the move if they prove it would affect the kid's well-being. During a move-away case hearing, the judge will assess the situation and determine what’s in the kid's best interest. Both parties get the opportunity to present their arguments and opinions about the proposed relocation.

The parents can work together to create a new parenting plan that modifies the visitation schedule to accommodate the move while addressing issues like primary custody. Regardless of whether the other parent has exercised their visitation rights previously, you must obtain a move-away order from the judge before relocating with your child.

This relocation order will establish custody arrangements, the new visitation schedule, and other conditions and necessary modifications to the original custody agreement.

In joint physical custody arrangements in San Diego, the parent wishing to relocate with the child has to prove to the judge that the move would be in the child's best interests. The relocation hearing follows the same processes as a move-away case for primary physical custody. Ultimately, the judge’s decision will be based on what they believe to be in the child's best interests.

I am not my child’s primary physical custodial parent. Can I relocate with them out of state?

If you are not a custodial parent in San Diego, you must obtain a court-approved change of custodial rights and a move-away order to relocate your child out of the state.

How far can I move if I have joint custody in San Diego?

It’s not uncommon for parents to seek relocation, whether due to career transitions, financial reasons, or personal well-being. Nonetheless, intending to relocate to another city or state may demand substantial alterations to your custody rights and visitation arrangements.

The other parent could argue that the relocation would affect their visitation rights or their child's development. Consequently, this may lead to a transition from shared custody to the other parent obtaining primary physical custody.

Do I need a move-away court order if I take my kid on vacation outside California?

Certain parenting plans restrict traveling with the child outside of the state or country even for a vacation. If the parenting plan specifies that both parents must agree to the child's out-of-state travel, you must communicate with your ex about the issue. If no agreement is possible, then a court order must be obtained.

Is it possible for me to lose primary physical custody in a relocation case?

It’s relatively rare for a parent to be stripped of primary physical custody based solely on seeking a move-away order. The determination of custody rights in San Diego is based on the child's best interests. Unless the other parent can make a convincing argument for primary physical custody, significant changes to custody rights should not occur. Contact our San Diego move-away lawyers at Moshtael Family Law for a free consultation if you're concerned about losing primary physical custody.

What is a bad faith move-away in San Diego?

A move-away petition made in bad faith is intended to weaken the relationship between the children and the non-custodial parent. Despite the requesting parent having valid reasons for the move, the court may reject the request after examining various factors, including the parent's past conduct.

For example, in the oft-cited La Musga case, the judge concluded that the mother had a valid reason to relocate. This reason was distinct from any attempt to interfere with her kids' relationship with their father. Pertaining to this, due to the mother's record of acting against the children's bond with their father, the court established adequate proof to suggest that the mother would hinder contact between the children and their father if the court approved her application to move away with the children.

Ultimately the mother's plea to relocate the children was rejected, and the judge in La Musga decided that if the mother proceeded with the relocation, they would grant the father custody of the children.

Can a San Diego parent holding joint custody move abroad?

When a parent in San Diego intends to relocate with their children to another country, it raises unique concerns. In determining a proposed relocation of underage children to a foreign nation, the family court in San Diego will consider:

  • Cultural standards, traditions, and behaviors in the foreign nation
  • Any difficulties with visitation caused by the distance from San Diego
  • Whether jurisdictional matters will make enforcing the San Diego custody order problematic

In an international relocation case, the child's best interests necessitate, at the very least:

  • Sustained communication between the child and the parent staying in the United States
  • Assured enforceability of the San Diego custody order in the foreign nation

Relocating to another country can significantly impact a child's best interests either negatively or significantly if:

  • The social and cultural norms in the foreign country being considered differ considerably from the American culture
  • The child would lose vital safeguards or benefits that are absent in the proposed nation
  • The child would be deprived of fundamental rights or subjected to oppressive policies
  • In addition, travel costs and travel time present a significant obstacle to visitation or co-parenting with the non-relocating parent. The operational details of international child custody arrangements can have a practical impact of essentially isolating the non-relocating parent from their child.

    In such instances, the relocating parent must demonstrate that ending the other parent's visitation or custody privileges would be in their child's best interests. If the relocating parent cannot meet this responsibility, the court in San Diego may suggest a plan where the moving parent can fund the other parent's visitation or the child can spend alternating years in each country. This approach can help preserve the child's relationship with both parents.

    Taking this into account, the obstacle to meaningful contact works both ways. If a San Diego parent relocates to a foreign country while the child stays in the US, it can sever their relationship. If the case ultimately hinges on this issue, the "tiebreaker" will depend on which parent is more likely to ensure frequent and ongoing contact between the child and the other parent.

Developing a Parenting Plan that Accounts for Relocation

Divorced co-parents in San Diego may come to an agreement that it is in the best interest of their child to relocate with the requesting parent. In such instances, the co-parents can collaborate to revise the existing parenting plan and make adjustments to account for the move-away.

Apart from prioritizing the child's best interests, there are no set rules for creating or revising a parenting plan in a San Diego relocation case. The goal is to establish a plan that promotes the child's well-being and enables them to maintain healthy ongoing relationships with both parents.

It’s essential to prioritize positive and consistent parental communication with the child to ensure a successful long-distance parenting plan. Additionally, the plan should allow for reasonable visitation with the non-custodial parent and include a schedule outlining the visitation arrangement.

The long-distance parenting plan should establish clear guidelines for the child's transportation between the two homes. In situations where frequent visitation is not possible due to the distance, the plan should make provisions for regular communication through phone, email, video chat, or other suitable methods.

Get Strong Legal Representation from Our Experienced Relocation Attorneys in San Diego

A thorough understanding of the law and proper preparation for the hearing are crucial for a successful move-away case, regardless of whether you are the parent seeking to relocate or the non-custodial parent opposing the child's move.

Moshtael Family Law provides expert legal advice and strong legal representation for move-away cases in San Diego. Our experienced San Diego child custody and relocation attorneys can guide you through the process and assist in gathering relevant evidence to present to the court to support your claim, whether you are the parent petitioning for the move or the non-custodial parent opposing it.

We have over 185 years of collective experience in family law with an impressive track record of favorable outcomes for our clients. Our team of San Diego child custody attorneys is dedicated to providing the legal guidance and support you need throughout the move-away case process.

We recognize that you have a deep understanding of your child's needs, and we are committed to safeguarding your parental rights and prioritizing your child's best interests. We can assist you in collecting relevant evidence to present to the court and articulate your argument effectively to help you maintain stability in your relationship with your child.

You can call Moshtael Family Law at 619-639-9898 or contact us online to set up a free consultation on how we can help you achieve a move-away order or challenge a co-parent’s relocation request in San Diego.

Please call or contact our office online to arrange for an appointment about your case today.

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