Written by attorney David Harold Ross

California Move Away Cases

In California, when one parent wants to move away with the couple's child, the courts will handle the situation differently; depending on when the move occurs. If it happens before a family law case is filed, the courts can do nothing to stop it. However, that does not mean that there will be no serious consequences. If the moving parent conceals the child from the left behind parent, not only will the family law court which eventually will hear the case look disapprovingly on the concealment, but the parent may be criminally prosecuted for parental kidnapping. If the left behind parent is kept from knowing where the child is, he or she should immediately notify the police. If the child's location is known, the left behind parent should immediately file a family law case seeking custody of the child. It is important to do so quickly both to protect the relationship with the child and to get the case heard in the county where the child lived before the move. It is much easier to have court in your home county than in a distant one. Once a case is filed and served, an automatic restraining order comes into effect which prevents a parent from moving a child of the parties out of the county without the court's permission. Violation of this order can have serious consequences such as having the police come and take the child to the left behind parent or even jailing the offending parent. When a case has begun, if there has not yet been a custody order made, or if there is an order and it is called a "temporary order" or it is for joint physical custody (where the parents share almost equally time with the child), then the parent who wants to move must file a motion seeking custody and permission to take the child. In deciding these cases, the court considers two fundamental legal principles: the constitutional right of all Americans to move and the best interest of the child. Given the right to move, a court cannot tell a parent not to go, but it can decide who the child will live with. It can say you can go, but with or without the child. The moving parent, then, must show the court that it is better for the child to be with him or her in the new place than to remain with the other parent in the county where the child has lived. The left behind parent must show that that it is better for the child to be with him or her with no move. Because every case is different, there are very few general rules about which would be better. If one parent is seriously mentally disturbed, an active addict or alcoholic, abusive, violent or frequently getting arrested, it is very unlikely that that parent would get custody, move or no move. It is also unlikely that a parent who knowingly falsely accuses the other of any of these behaviors would get custody. Reasons that are commonly given by either side in move away cases to persuade the court are that economic circumstances are better here or there; that extended family and close friends are here or there; that schools, necessary medical care, life style are better in one place than the other; that the other parent has rarely performed parental duties, or doesn't know how; that the other parent is not emotionally equipped to be an effective parent; that the other parent interferes with your time with the child, and the child's preference. It is necessary to be very specific when presenting these issues to the court. For example, saying that the other is a poor parent only tells the court your opinion, but gives the judge nothing on which he or she can form their own opinion. Spell it out using concrete examples. If there is a permanent custody order, other than for joint custody, the court has already decided who is the better parent. Therefore, the non-moving, non-custodial parent has the difficult job of changing custody. That parent must show that there has been a change of circumstances since the last order that makes it essential or expedient for the welfare of the child to change custody. Another way of saying what must be shown is that the move would so harm the child that the court should now change its mind about custody. Sometimes there have been events other than the move which would justify the change. An example would be that the custodial parent now has an abusive partner. Often, though, the main change is the move itself. The distance now would interfere with the child's relationship with the left behind parent. However, since a change of custody would hurt the child's relationship with the moving parent, this reason is important, but rarely enough. The moving parent should always emphasize how the relationship with the other parent would be protected, while the left behind parent should focus on the harm. In addition to these, other issues commonly raised are the following. Are the reasons for the move realistic, sensible? How stable are the economic, social, emotional and living situations in both places? What are the child's connections to the two places? What is the child's preference? How would the custody change itself impact the child's emotional, school and social lives? Again, to be persuasive, you must be specific. Given the difficulty of changing custody, often the best that the left behind parent can expect is a new visitation schedule which includes large blocks of time during school vacations, perhaps shorter visits in the new place, and which specifies a schedule of communication by phone, e-mail and video over the internet. In California, the courts cannot prevent a parent from moving, but can determine whether the child will go or stay with the left behind parent. That decision will be based on what is best for the child, not what the parents need or want. If a permanent custody decision has already been made, the order can be changed, but only if the non-custodial parent can show that something has changed so that the old order is now harmful and that the custody change, especially given a move, would be better for the child. That is often a tough fight to win.

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