Under California law, a parent who wishes to relocate with their child must generally seek court approval if the move would disrupt existing custody or visitation arrangements, or if the other parent does not agree with the proposed relocation.
If the parent who wishes to move has sole physical custody, and the custody order is permanent, a judge will typically approve the relocation request unless the objecting parent can show that moving away would not be in the best interests of the child. A judge will typically not allow a parent who shares joint physical custody to move away with the child unless that parent can show that the relocation would be in the child’s best interests.
The outcome of a move-away case is not solely determined by existing custody orders. Parents who wish to relocate with a child, or are concerned about the other parent moving away with their child, should speak to a family law attorney extensively experienced in child custody matters to understand their rights and what to expect in courts.
Key Highlights: What To Expect in California Move-Away Cases
- Presumptive Right to Relocate: In re Marriage of Burgess (1996) established that the parent with primary physical custody has a presumptive right to relocate with their child. However, this right is not absolute.
- Court Approval: Moves that would disrupt the existing custody or visitation order require court approval in a move-away (relocation) case.
- Best Interests of the Child: The court’s primary concern is whether the proposed relocation serves the child’s best interests.
- Burden of Proof: In re Marriage of LaMusga (2004) clarifies that when the relocating parent has primary physical custody, the objecting parent bears the burden of showing that the move would not be in the child’s best interests.
- Potential Custody Modifications: Courts cannot stop a parent from relocating alone, as individuals have constitutional freedom of movement. However, if the parent’s relocation would interfere with their ability to comply with custody or visitation orders, the court may modify custody arrangements.
LaMusga Factors: How California Judges Decide Move-Away Cases
In re Marriage of LaMusga (2004) confirmed that courts can modify custody in favor of the objecting parent if the relocation would disrupt their relationship with the child or interfere with existing custody and visitation orders. This case established the factors courts use to decide if a move-away is in the child’s best interests.
- Distance: If the distance of the move would harm the child or make it physically or financially difficult for either parent to fulfill custody arrangements, the judge may consider this a factor against the move-away request. However, this concern can sometimes be addressed by establishing a parenting plan with “virtual visitation” and specific arrangements for continued contact.
- Custody Arrangements vs. Actual Parenting Time: A judge will compare the custody order with the actual time the child spends with each parent. For example, if the child spends more time with the parent seeking to move and this extra time has benefited the child, the judge may view the relocation as consistent with maintaining the child’s established care.
- Parent-Child Relationship: When a child has a close bond with both parents, moving away may be more disruptive than in cases where the non-relocating parent has been minimally involved in the child’s life.
- Purpose of the Move: A judge is unlikely to approve a relocation request if it appears that the parent’s reason for moving away is to limit the other parent’s contact with the child.
- Co-Parenting Relationship: A judge will consider the dynamics of conflict and cooperation between parents. If parents behave negatively toward one another, they may struggle to coordinate and maintain the child’s relationship with the non-relocating parent. If a parent behaves negatively toward (or speaks negatively of) the other parent in front of their child, does not follow custody orders, or restricts contact between the child and the other parent, the judge may not consider relocation to be supportive of the child’s best interests.
- Child’s Stability and Continuity: Moving a child to a new home, city, or state introduces significant changes to their lives, including their environment, routines, and social connections. Courts generally do not favor moves that would substantially disrupt the child’s sense of emotional security.
- Age of the Child: Older children may have established routines and social connections, making relocation more disruptive. Younger children may have a greater need for physical contact with both parents to maintain secure bonding and attachment. A judge will carefully consider how the child’s age will affect their ability to maintain contact or travel for visitation, and how moving away might affect the child given the unique needs and circumstances of their age.
- Child’s Preference (If Old Enough): A judge may have a counselor speak to older or more mature children to understand their preferences regarding the move. Under California Family Code § 3042, if a child is 14 or older and wants to address the court on custody or visitation issues, the court must allow it (unless it would not be in the child’s best interest).
Legal Guidance For Relocating & Non-Relocating Parents
If you are considering relocating with your child, or are concerned about the other parent moving away with your child, speak with a skilled lawyer who will hear your concerns and ensure that your rights and child’s well-being are fully represented.
At Kaspar & Lugay LLP, our family law attorneys are California child custody experts with extensive experience negotiating and arguing move-away custody modification cases. We do everything in our power to secure favorable resolutions across a wide range of custody matters.
Call 415-789-5881 or contact us online to schedule a consultation with our experienced attorneys.
