Can I Move Away and/or relocate with my children?
Can I move with my children without the other parent’s permission?
No. In order to move-away or relocate with your children you must either obtain the approval of the other parent or seek a court order. If the other parent approves of the move it is highly recommended that you consult a move-away / relocation attorney to draft the paperwork necessary to protect you later should a conflict arise between you and the other parent.
People often think that it is okay for them to move even if it is a relatively short distance such as the town or city next to where they are currently residing with their children but it is not. The other parent can make an issue of the move-away and if the court agrees with the other parent then they can order a change of custody. As a result before you even consider a move-away you should consult a move-away / relocation attorney that can give you legal guidance and help you plan your move-away. A move-away / relocation does not have to end up in a battle between you and the other parent. Consequently, hiring an attorney who can coach you on how to approach the subject can be vital in reaching an agreement with the other parent.
Reasons for Move-Away / Relocation with Children
There are many reasons a parent may wish to move-away with their child including obtaining a better job, family ties, educational opportunities, escaping domestic violence, new relationship, etc. However, if the purpose of if the move is to frustrate or interfere with the other parent’s right to meaningful and continuing contact with the child a move-away will not be approved by the court.
Statutory Law Dealing with Child Move-Away / Relocation
The area of family law dealing with a move-away or relocation is very complex. Family Code Section 7501 state that a parent has right to change the residence of a child which is subject to the power of the court to “restrain a removal that would prejudice the rights and welfare of the child.” Since it is left to the Court’s subjective opinion of what prejudices the rights and welfare of the child no attorney can guarantee the outcome of a move-away or relocation. It is important to note that the court can take away primary physical custody from a parent wishing to relocate with the child.
Case Law Dealing with Child Move-Away / Relocation
In additional to statutory law case law has developed that defines the grounds the a court must considering when deciding to grant a move-away and modify custody.
In Marriage of LaMusga which is currently the leading case in move-away and relocation cases the court stated 8 things that needed to be considered:
- (1) children’s instability and continuity in the custodial arrangement.
- (2) distance of the move.
- (3) age of the children.
- (4) children’s relationship with both parents.
- (5) relationship between the parents (which includes their ability to communicate, cooperate, and willingness to put their children’s interests first).
- (6) wishes of the children (if they are mature enough [mentally] to make such a selection).
- (7) Reasons for the move.
- (8) extent to which the parents currently are sharing custody. If the parent’s share 50/50 custody or close to 50/50 custody the court in footnote 12 in the Marriage of Burgess state that a court would have to make a new, or “de novo,” determination regarding custody based upon the best interests of the child. As a result if you currently 50/50 custody you can either end up losing or gaining custody time based on the court’s decision.
Therefore, if you have a move-away / relocation situation you need an attorney who can give you proper legal advice on how to proceed to protect you and your children’s interests.