What Happens When One Parent Wants to Move Away with the Children?

By: Matthew Smurda, Esq.
: October 29, 2016

When parents separate or divorce, the entire family is affected by significant changes. In many instances, one parent can no longer continue living in the same place. For any variety of reasons (i.e. new job, out-of-state family support, etc.) one of the parents can be faced with no choice but to relocate. If both parents are agreeable, all that is required is a written custody agreement or stipulation and order. But, what happens if the other parent does not want the children to move to a new place?

This scenario is commonly referred to as a “Move-Away” case. Move-away requests are among the most difficult disputes faced by family law litigants, attorneys and judges. Each state has its own analysis and factors for resolving move-away disputes. Generally, a clear-cut rule or standard is not implement; rather, the court prefers to look at each move-away request on a case-by-case basis, taking into account the unique facts and circumstances of each case. In determining move-away cases, the question is not whether or not the parent is permitted to move, but rather what custody arrangement would be in the best interest of the child if or when the moving party relocates.

What does the court look at in making a move-away determination?

In California, the court begins its analysis by determining whether one parent has already been designated as the primary custodial parent. Under Family Code § 7501, a custodial parent has a presumptive right to relocate with their child, subject to the power of the court to restrain any residence change that would prejudice the rights or welfare of the child.

The primary custodial parent is presumed to be within his or her parental rights when it comes to relocation, so he or she does not need to justify the move as being wise or necessary. On the other hand, if the non-custodial parent can show that the motivation behind the move is simply to break the parent-child relationship, then the primary custodial parent may need to provide such justification. Otherwise, the burden will be on the non-custodial parent to first make a showing that a significant change of circumstances has occurred and it is detrimental to the child for the court to permit the move, thereby warranting a reexamination of an existing custody order. For example, a custodial parent seeking to move across country, thus impairing the non-custodial parent’s ability to maintain a close relationship with his or her child, may warrant denying the request to relocate or a change in custody.

If the non-custodial parent establishes the necessity of a reexamination of the custodial arrangement, the court must then determine whether a change of custody is in the best interest of the children. In doing so, the court will consider the detriment established, as well as additional factors to be later discussed.

On the other hand, if an initial custody determination has not yet been made and neither party is the primary custodial parent, then presumably both parents have a “right to custody” and either may request to relocate the child. Since no custody arrangement has previously been set, the relocation of the child will be considered in the court’s initial custody determination.

Where both parents equally share custody, the parent opposing the relocation does not need to establish the significant change of circumstances and the detriment to the child that a non-custodial parent must show. A reexamination of the custody arrangement is presumed necessary in move-away cases where there are existing joint custody arrangements. A full adversarial hearing must take place, allowing the parents’ competing claims to be heard and evidence presented prior to a determination.

Where a final custody order has yet to be set, the proposed move shall be taken into consideration as part of the court’s overall determination of what custody arrangement shall be in the best interest of the child.

Courts are hesitant to disrupt the status quo of a child because they recognize the paramount need for continuity and stability in a child’s life, and the importance of maintaining and nurturing the relationship between the child and each parent. In California, Family Code § 3040(b) gives courts broad discretion in determining what is in the best interest of the child in light of the totality of the circumstances.

The following factors were provided in a 1996 California case, In re Marriage of Burgess (1996) 13 Cal.4th 25. Although they may vary in word choice, such factors are quite common in courts nationwide and are often used as a starting point in their determination:

  • The nature of the child’s existing contact and bond with both parents;
  • The child’s age, community ties, health, and educational needs; and
  • The child’s preference as to custody, if the child is of sufficient age and capacity to form an intelligent preference [See California Family Code § 3042(a)].

In re Marriage of Winternitz, a recent 2015 California case, set forth additional factors of consideration:

  • The distance of the move;
  • The age of the minor(s);
  • The relationship between the parents including, but not limited to, whether the parents can effectively communicate with one another and their willingness to put the needs of their children above their own when it comes to encouraging and aiding in the continuance and growth of the bond between the child and the other parent; and
  • The reasons for the proposed move.

Move-away issues are difficult to navigate and are legally complex. If you are facing a move-away custody issue, it is imperative that you consult with an experienced Family Law Attorney, a legal aid clinic that offers Family Law services, and/or the Self-Help Department of the Family Law Court in which your case is being heard.