What rights do you have if you need to relocate with your child away from the area where you are currently living? Do you need the other parent’s permission to move away? Must you obtain a court order before relocating?
This is a complex area of the law when it comes to child custody decisions. The seminal case, Marriage of Burgess(1996) 13 Cal.4th 25, decided by the California Supreme Court, addressed the mother’s move away request for a move of only 40 minutes away from the other parent. The Burgess case eliminated the obligation of the moving parent to demonstrate that the move is necessary, although the court will analyze the reasons for the move (i.e. whether the request to relocate is made for legitimate reasons or the moving parent wants to frustrating the non-moving parents relationship with the child).
Many move away requests seek permission to relocate out of county, out of state, or out of the country. In most scenarios, the non-moving parent will be unable to maintain their existing visitation schedule or parenting time with the child if the move is permitted. Either way, the court has a very difficult decision since allowing the move will strain the child’s relationship with the non-moving parent and preventing the move may separate the child from his or her primary caretaker if the court changes custody to the non-moving parent.
The Burgess case was adopted by the California Legislature and codified in Family Code § 7501, which states that a parent with custody of a child has a presumptive right to relocate with the child. But it’s not that simple. Over time, the courts have analyzed the requirements for a parent’s relocation request depending upon many different factors, with the initial inquiry starting with:
- whether the parents share joint physical custody (over 30% of the actual parenting time with the secondary parent), or
- whether one parent has sole physical custody by court order or agreement or de facto sole physical custody (more than 70% of the parenting time with the custodial parent).
If it is determined that one parent has sole or de facto physical custody, that parent has the presumptive right to move and the other parent must make an initial showing that it is essential or expedient to change custody to the non-moving parent in order to prevent detriment to the child if he or she were to move with the relocating parent.
When the parents have a shared parenting plan, the court must make a review “de novo” to determine the child’s best interests in evaluating the move away request.
In either scenario – whether one parent has sole custody or there is shared custody – the court must analyze and assess the factors enumerated in Marriage of La Musga (2004) 32 Cal.4th 1072 (pronounced “La Moo-shay”):
a. the child’s interest in stability and continuity of the custody arrangement;
b. the distance of the move;
c. the child’s relationship with both parents;
d. 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;
e. the minor child’s wishes if mature enough to provide such information;
f. the reasons for the proposed move;
g. Extent to which the parents are currently sharing custody.
The court should not overemphasize the potential negative impact on the non-moving parent’s relationship with the child as it is expected that there will be some impact on that relationship. This is different than assessing whether the parent seeking to relocate has a bad faith motive for moving i.e. for the sole or primary purpose of frustrating the non-relocating parent’s relationship with the child.
In addition, if the relocation requests involves an international move, the court must consider additional factors to those enunciated in LaMusga, as set forth in Marriage of Condon (1998) 62 Cal.App.4th 533:
a. Cultural conditions and practices that might impact the child;
b. Whether distances are so great to financially prohibit visits;
c. Jurisdictional problems making CA orders unenforceable.
If you need to discuss relocation (move-away) issues with an experienced child custody lawyer, please contact Diana Passadori of Passadori Family Law & Mediation, P.C. at diana@passadoriflm.com.