What Determines a Move-Away Child Custody Case?

Move-Away child custody and visitation proceedings are among the most difficult to resolve for the parties, their attorneys and any judicial officer assigned to the case. These may occur early in a divorce or paternity case, or months and even years after a judgment has been entered.

The standards for determining a move-away case differ depending on whether the parent seeking to move has sole or joint physical custody under an existing order. If the parent seeking to move has sole physical custody, the non-custodial parent seeking to contest, or block, the move-away, bears the burden to show that the move would be detrimental to the child.

If, on the other hand, the parties share joint physical custody, the non-moving parent can request a modification of physical custody by showing that the change is in the child’s best interests and that any move would not be in the child’s best interests.

What Constitutes Sole Physical Custody for Move-Away Purposes?

For purposes of a move-away, joint physical custody requires more than a corresponding label in the existing order. Courts have held that a parent who has children at least 80 percent of the time has sole physical custody for move-away purposes even if the order states joint physical custody.

As with any child custody case, determining the child’s best interests where the parties share joint physical custody includes consideration of a number of factors including, but not limited to, the child’s need for stability and continuity, the goal of the State of California that each child have frequent and continuing contact with each parent, the child’s health, safety and welfare, contact with siblings, use of controlled substances or alcohol, any history of domestic violence and the child’s preference.

Are Child Custody Evaluations Needed for Move-Away Issues?

In many cases, a proposed move-away presents such complex issues that a child custody evaluation may be ordered at the request of either party. This generally involves a privately compensated expert with special training in child psychology and development who interviews the parents, the children and third parties and makes a recommendation to the court as to whether a parent should be permitted to move the child’s residence to a new location.

A move-away case does not require that a parent seeks to move to another state or country. In many cases, a move to another city or county within California can result in such a substantial change in the child’s school and the custodial schedule. Because of this, a move-away trial may be warranted or even necessary for relatively short moves.

It is important to note that the laws around move-away situations have evolved, and continue to evolve, in the State of California. It is therefore crucial to consult with an experienced child custody attorney as early in the process as possible in order to obtain the most current information on the state of the law and to strategize and plan whether you are requesting or contesting a move-away.