Protecting Your Future

Moving Away – To Go Or Not To Go

| Apr 2, 2021 | Firm News |

“So kiss me and smile for me…Tell me that you’ll wait for me…Hold me like you’ll never let me go…’Cause I’m leavin’ on a jet plane…Don’t know when I’ll be back again…Oh babe, I hate to go”. John Denver, “Leaving On A Jet Plane”.

What happens when one parent moves away? Do the kids go with that parent, or stay behind with the other parent? The short answer is: It Depends. You can move wherever you please whenever you please. The court does not have the power to stop you from moving anywhere. If your child is under the court’s jurisdiction under the UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act), then your child is under the court’s responsibility and will need to be involved in this decision.

If you are the parent with primary custody, you have the right to change the residence of the child, but the court does have the power to stop the child from moving if it would ‘prejudice the rights or welfare of the child’.

Family Code section 7501:

  • 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.
  • ) It is the intent of the Legislature to affirm the decision in In re Marriage of Burgess (1996) 13 Cal.4th 25, and to declare that ruling to be the public policy and law of this state.

If the other parent does not agree to you taking the child, then this matter will have to be litigated and decided by the court. If the moving parent has primary custody, the court “in considering all the circumstances affecting the `best interest’ of minor children, may consider any effects of such relocation on their rights or welfare.” (Burgess, supra, at p. 32, 51).

If the parents share equal custody, or close to it, whether there are current court orders or not, the court must consider all of the factors in the case of In re Marriage of La Musga (2004) 32 Cal.4th 1072, including the child’s:

  • “interest in stability and continuity in the custodial arrangement;
  • the distance of the move;
  • the age of the child;
  • the child’s relationship with both parents;
  • the relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the interests of the child above their individual interests;
  • the wishes of the child if he or she is mature enough for such an inquiry to be appropriate;
  • the reasons for the proposed move;
  • and the extent to which the parents currently are sharing custody.”

Whether you are the parent wanting to move with the child, or the parent opposing the moving parents’ request to take the child, understand that you are facing a serious case that will require you to have all of your ‘ducks’ in a row, to either convince the court that the move will not be detrimental to the child, or that it is in the child’s best interests to stay here.

“Move-Away” cases are no doubt the most difficult type of custody cases the courts face. No matter what the outcome, one parent will be disappointed, and the child’s life will be altered forever. Regardless of the outcome, both parents should make sure the child feels secure, loved, and supported, and that both parents work together to make their new long-distance co-parenting relationship work, for the sake of their child.