It depends on what you mean by "custodial" parent. Does the other party have any visitation? Is this visitation exercised? If yes, then any interference in visitation is considered in a move away request. The judge will consider whether that visitation will be significantly reduced due to the move and will this reduction be detrimental to the child? Move away cases are one of the most difficult challenges a court faces. Please consult an attorney to protect the best interests of the child/children. I wish you the best of luck.
It is difficult to give accurate legal advice when all of the details of your case are not known. Please take this into consideration and consult a local attorney if you need additional assistance.
This is a most delicate situation and you need to consult with local skilled family law attorney. I agree with counsel above, but would add that in giving the forty five notice, your ex will have the right to file a motion with the court for the court to determine whether it is in the children’s best interests to uproot them from their usual and customary life and move them out of state which will essentially destroy the other parent’s visitation rights. California has a public policy of frequent and continuing contacts with the children by both parents. Moving away is going to conflict with that public policy.
If you move before the forty five days and there is a motion filed by the other parent, you may be found in contempt of court and ordered to bring the children back. You really need to think this through in terms of what is in the children’s best interest…. Jerking them around from one state to another and then back again, does not appear to be in any child’s best interest. More information need s to be known about the other parent and why they have not visited, whether they want to visit but are not able, etc. there are a vast amount of facts which will play a role in the ultimate decision on whether the move can be made. On the other hand, if no motion is filed by the other party after the forty five days has passed, then barring any other order prohibiting the move you may be okay. But again you need to consult with local family law attorney who can obtain all the relevant facts and guide you accordingly. Last, if you do give the forty five days notice, be darn sure they actually get the notice and that you can prove it in a court of law.
Please feel free to call Attorney Martha Bronson at 209-830-0400 for help. Martha Bronson is an experienced attorney in the Sacramento, San Joaquin and Bay Area courts, having been in practice over twenty four (24) years.
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Please note that this answer does not constitute legal advice, and should not be relied on, as each situation is fact specific, and it is not possible to evaluate a legal problem without a comprehensive consultation and review of all the facts and court pleadings filed in the case. This answer does not create an attorney-client relationship.
The simple answer although maybe not the one you are wanting, is that it is better that you file a Request For Orders, before leaving, asking the court for permission to move. In that way you cover your bases. Further, if the facts are as you suggest, then you will be granted your request. But ask yourself, is it worth taking a risk that you could be forced to return? Good luck!