A child custody move-away case occurs when one party makes the decision to relocate outside of the county in which he or she was residing. Usually, move-away cases involve the complex issues that arise when a parent moves beyond a distance that permits for the moving-parent to continue to take the minor child to his or her school. This means that move-away cases typically involve moving to a home beyond 10 miles from the party’s prior residence.
If you are involved in a California Custody Case, you should first be aware of the existence of the Automatic Temporary Restraining Orders (ATROs) that go into effect automatically at the commencement of either a divorce (dissolution of marriage) case and at the outset of a Petition for Child Custody and Visitation Orders. These ATROs go into effect for the Petitioner upon the filing of the case and become effective upon the Respondent(s) following the personal service of the Petition upon the Respondent or upon the filing of a Response to the case by the Respondent. These Restraining Orders can be found on page 2 of the Summons.
The ATRO relating to the relocation of the minor child in a divorce case reads:
Starting immediately, you and your spouse or domestic partner are restrained from:
1. Removing the minor children of the parties from the state or applying for a new or replacement passport for those minor children without the prior written consent of the other party or an order of the court”
The ATRO relating to the relocation of the minor child in a Child Custody case reads:
Starting immediately, you and every other party are restrained from removing from the state, or applying for a passport for, the minor child or children for whom this action seeks to establish a parent-child relationship or a custody order without the prior written consent of every other party or an order of the court.
In the move-away case of In re Marriage of La Musga, (2004) 32 Cal.4th 1072, the Court lays out all the various burdens of proof and factors that the court may consider in determining whether the minor children are permitted to move.
In a move-away case where the moving-away party has sole physical custody of the minor child, there exists a presumption that the move-away is in the best interest of the minor child. At that point, the noncustodial parent (NCP) bears the initial burden of showing that the proposed relocation of the children’s residence would cause detriment to the children, and thus requiring a re-evaluation of the children’s custody. Once the NCP makes such an initial showing, the court must then determine whether a change in custody is in the best interests of the children.
In a move-away case where the parties have joint physical custody, there does not exist any presumptions that affect the burden of proof, except for Family Code 3020(b), which states that the Legislature finds and declares that it is the public policy of this state to ensure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except when the contact would not be in the best interests of the child, as provided in subdivisions (a) and (c) of this section and Section 3011.
The facts that a Judge is mandated to consider in a move-away case include:
1. Children’s interest in stability and continuity in custodial arrangement
2. Distance of move (for example, to a neighboring county, or to another state)
3. Age of children
4. Children’s relationship with both parents
5. Relationship between parents, including, but not limited to their ability to communicate and cooperate effectively and their willingness to put the interest of the children above their individual interest
6. Wishes of children if they’re mature enough for such an inquiry to be appropriate
7. Reasons for proposed move
8. Extent to which parents currently are sharing custody
The court must make analyze these facts prior to granting or denying a move-away. Move-aways are highly fact intensive. If you are thinking about moving with your minor children, it is best to consult an attorney and provide as much detail as possible regarding the above factors and any other information that the court may use to determine what’s best for your children.
To speak with an experienced family law attorney, you may contact us at (925)258-2020 or you may find us at www.bayareafamilylawcenter.com. We look forward to helping you with your case.
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