Moving a child away from the other parent is a serious matter for the court. When it comes to custody, the first rule is that the child will have “frequent and continuing contact” with both parents. If one parent wants to move several states away from the other parent, who gets custody?
As in every custody determination, the court must address the best interest of the child, in light of a duty to ensure frequent and continuing contact with both parties Family Code section 3020 (b)), while respecting a custodial parent’s right to change the child’s residence if the removal does not prejudice the rights or welfare of the child Family Code section 7501 (a)). In prior years case law has changed from placing the burden on the moving parent to demonstrate the need for the move, then shifted to the parent opposing the move to demonstrate that actual detriment would befall the child because of the move. Now it appears that the pendulum has swung a bit closer to the center, allowing each parent to present evidence of the impact of the move on the child, and allowing the court to make a decision in a way that focuses primarily on the needs of the child.
When making a custody order, the court may require one parent to give the other notice of any plans to change the residence of a child for more than 30 days, absent any prior written agreement regarding such a removal. Family Code section 3024. If possible, the notice should be given at least 45 days before the proposed change of residence, to allow ample time to mediate a new custody agreement. The notice should be provided to both the parent and his or her attorney. Family Code section 3024.
If an intended move will make an existing custody and visitation order impractical, the moving parent should give as much notice as possible to the other parent and begin discussions regarding a modified plan at once. The needs of the child are better served when both parents have had the opportunity to explore and consider a variety of options for the new arrangement. If there is disagreement and the matter must be resolved in court, it may take longer than 45 days to have the matter heard.
Additionally, if there are factual disputes, the court may want to conduct an evidentiary hearing, which may not be possible within such a short window of time. If each parent has a significant relationship with the child, it is also quite likely that the court will seek additional information by way of a child custody evaluation before making a decision with the potential to substantially change a child’s existing relationship with either parent.
Need For Evidentiary Hearing
Despite this expanded need for trial courts to exercise discretion, the Supreme Court has stated that in a move-away situation, an evidentiary hearing should be held only if necessary. In particular, if a parent has been awarded sole legal and physical custody of a child, a trial court may deny the noncustodial parent’s request to modify custody without holding a hearing to take oral evidence if the noncustodial parent’s allegation or showing of detriment to the child is “insubstantial in light of all circumstances in the case, or is otherwise legally insufficient to warrant relief.
It is very important that the Request For Order submitted on your behalf be extremely thorough, present your best evidence and point out the flaws in the other parent’s position as your paperwork may be the only chance you have to let your side be told.
Move Away As the Initial Custody Order
In some cases, a parent wants to move away from the other parent before any custody orders have been made. The court must use a “best-interest” standard to make an initial custody determination, taking into consideration the child’s need for stability and emotional attachment to each parent. This analysis applies, even if a court has issued a custody order in proceedings under the Domestic Violence Prevention Act (DVPA) because such an order is not considered a final custody order that requires changed circumstances for modification. There also may be circumstances in which a court takes into account a child’s attachment to others, including siblings.
If there has been a significant period of separation between the parties, the court may also take into consideration whether one parent is a de facto “custodial parent” within the meaning of Family Code section 7501, and, if so, consider that parent’s presumptive right to relocate with the child. If there has not been a significant period of separation, an assessment of whether one parent is a “custodial parent” within the meaning of Family Code section 7501 becomes much more difficult.
The tacit ways in which parents in intact families choose to divide child-related duties, when the child has access to both parents on a daily basis, may or may not predict the way in which those duties will or should be allocated post separation.