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How does child custody work if parents are not married, and mom wants to move to another state?

Livermore, CA |

I am the mother asking.
My ex and I have a 1.5 year old. I have always planned on moving back to FL from CA. We both get along well, but now things are starting to get ugly. Does it even matter if him and his parents did not want the baby to begin with and now they love her. I do not approve of the conditions him and his family live and she does not go to there house but I have never stopped them from seeing her, and they do see her once a week, and the father sees her 3-4 times a week. His house is a heavily smoke environment house. I feel this is not an environment for a child to be, but again they do still get to see her. In a perfect world I would like to have her come live with me in FL and I do want her to see her dad,we just don't know how this works.

Attorney Answers 3


Technically, until the paternity of this child is determined, your ex is not legally considered to be the father of this child. Therefore, legally and at this point he does not have the right to decide where you and your daughter live.

Paris Kalor, Esq.
(949) 460-6466
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NOTE: This answer is made available by the lawyer for educational purposes only. By using or participating in this site you understand that there is no attorney client privilege between you and the attorney responding. This site should not be used as a substitute for competent legal advice from a licensed professional attorney that practices in the subject practice discipline and with whom you have an attorney client relationship along with all the privileges that relationship provides. The law changes frequently and varies from jurisdiction to jurisdiction. The information and materials provided are general in nature, and may not apply to a specific factual or legal circumstance described in the question.

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First of all, it does not matter that he did not want the baby at the beginning. The important fact and the fact that benefits the baby is that he loves her and has been an involved father (seeing the child 3-4 times a week).

Second, I strongly suggest that you seek permission from him in writing or court order granting you permission to move to Florida with the child. The reason I say that is because he is an involved father and a move away will certainly prevent him from the regular and frequent visitation he has been having with the child. Therefore, I suspect that he will immediately file a Paternity action in California and go into court on an emergency basis to get an order from the court that you return the child to California. If you move away without his written consent or court order, it will very likely seriously harm your position in that action.

Third, Relocation also can be grounds for the non-custodial parent to request a change in the custody arrangement. State courts recognize relocation as a significant change in circumstances that may necessitate a modification of the custody order. However, the very fact that the custodial parent is moving is not enough on its own for the court to modify custody. The non-custodial parent must be able to show that the move is such a detriment to the child that the court must determine whether there should be a change in custody in order to protect the welfare of the child.

The court will consider whether or not the move is an attempt by the custodial parent to limit or otherwise interfere with the other parent's rights to see the child —even if the custodial parent has a legitimate reason for moving, such as a new job.

Some of the factors the court will consider in determining whether to modify custody include:

The child's interest in stability and continuity in the current custody arrangement
The distance of the move
The age of the child
The child's relationship with both parents
The parents' relationship with each other, including their ability to communicate and cooperate with one another and their willingness to put the child's interests first
Wishes of the child, if the child is mature enough to appropriately indicate them
The custodial parent's reasons for the move
The extent to which the parents are currently sharing custody

Even if the court does not find sufficient evidence to modify the custody order, the court still has the power to modify the visitation agreement and award greater contact to the non-custodial parent.

In any event, studies have shown that in such move away situations, the child's relationship with the parent left behind becomes increasingly superficial because that parent does not know their friends, teachers and is not otherwise personally familiar with their life in the new location. The child also resents the parent who moved away for causing the relationship with the other parent to suffer. If your ex obtains permission to move away with the child, there are things that can be done to try and prevent the relationship from suffering in this way.

I strongly suggest that you retain competent legal counsel to assist you in this matter.

The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change.

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One of the major problems I see in your case (other than what has previously been addressed) is that of your daughter's age. In your perfect world, you would be living in Florida with her, but you also want her to see her dad, who is presumably in Alameda County. Due to her age, this will be very difficult and stressful for both you and your daughter, not to mention expensive. She is very, very young to be traveling across the country on a regular basis, and she obviously can't fly unaccompanied. With your ex's work schedule, I can't imagine that he would be able to go to Florida regularly for visitation, nor would I envision a Court order requiring all visitation to be in Florida. If there is going to be any sort of meaningful bond between the two of them, there will need to be frequent contact. Can you imagine how hard it would be on your daughter to have to fly across the country and spend summer with a virtual stranger?

While I completely understand your wish to move back to Florida, please be sure to consider all of the consequences, even if you get exactly what you want. Try to think about how hard it will be on both you and your daughter to be separated for any significant period of time for such a great distance.

If, at the end of everything, you still believe it's in you and your daughter's best interests to move to Florida (and it very well may be just that), do be sure to consult with and retain an attorney to help you with this process. There is no doubt in my mind that it will be a big custody battle since he and his family are attached to her.

I wish you the best of luck!

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