The high cost of living in California and over regulation has made a lot of parents evaluate whether to move out of state. The most common states that people move to are Texas, Arizona, Nevada, or Florida where the cost of living is lower and taxes are less or non-existent. However, if a parent with shared custody wants to move away with the children, they must follow a specific legal process to ensure the move is in the child's best interests. The move has to be allowed by the court through a court order because it will affect the non-moving parent’s custody/visitation rights. A parent cannot simply decide to move with the children without a court order. With the distance between the parents, the existing custody and visitation orders will no longer work out.
If a child custody order is in effect, the moving parent must notify the other parent that they intend to move, and oftentimes, they must often bring a request to modify the child custody and visitation order to court. The parent planning to move must provide written notice to the other parent at least 45 days before the intended move date. The notice should include the new address and contact information, the reason for the move, the proposed new custody and visitation arrangements.
The parents can try to reach an agreement on the move and the new custody/visitation schedule can be tuned into a court order by signing a stipulation and order for the move away containing the new custody/visitation orders. This would be the best case scenario where the parents are working together on deciding whether the child gets to move with the other parent and what the new custody schedule is going to be.
If the parents cannot agree, the moving parent must file a Request for Order (RFO) to relocate with the court. The RFO should explain the reasons for the move and how it is in the child's best interests. The Court will set a hearing on the move away request. Often, the Family Court in Los Angeles would order a Parenting Plan Assessment (PPA2) in which a custody evaluator will evaluate the facts of your case and make a recommendation to the Court whether to allow the move away and what the new custody/visitation order is going to be. The parties will have a chance to examine the evaluator in court and present their own witnesses.
The legal analysis in a move-away situation depend on the current custody arrangement. A parent with sole physical custody of a child has the presumptive right to change the child’s residence, subject to the court’s ability to prevent a relocation that would “prejudice the rights or welfare” of the child, pursuant to Family Code 7501, which states: (a) A parent entitled to the custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child. (b) It is the intent of the Legislature to affirm the decision in In re Marriage of Burgess (1996) 13 Cal.4th 25, and to declare that ruling to be the public policy and law of this state. Moreover, under California child custody law the custodial parent does not have to show that the move is “necessary,” assuming the parent is moving in good faith. (See Marriage of Burgess (1996) 13 Cal.4th 25).
The non-custodial parent can then challenge the relocation by requesting a custody modification based on a showing of changed circumstances and detriment to the child. As discussed in Burgess, the non-custodial parent must show a substantial change in circumstances rendering it “essential or expedient for the welfare of the children” that there be a custody change. Family courts are given the widest discretion to fashion orders and make determinations under these circumstances because each case is unique and these orders determine where, and with whom, minor children will live based on the La Musga factors. The LaMusga Court provided California family judges with a roadmap for deciding whether to modify a custody order in light of a parent’s proposal to change the residence of the child. The following is a checklist of the LaMusga factors family courts will consider:
- The Child’s Interest in Stability and Continuity in the Custodial Arrangement.
- A Significant Change in Circumstances.
- The Distance of the Move.
- The Age of the Child.
- The Social Impact of the Move on the Child.
- The Impact on the Child’s Education.
- The Child’s Relationship with Both Parents.
- The Relationship Between Parents.
- The Wishes of the Child.
- The Reason for the Move.
- The Extent to Which the Parents are Currently Sharing Custody.
Move-aways are generally “all or nothing” matters, since there is very little middle ground when one parent proposes to move the child to another state and the other parent is requesting the opposite. The distance becomes a real limitation in crafting a custody arrangement that would be in the best interest of the child. This process can be complicated thus parties are best served having experienced and highly skilled legal representation.
Please note that this article is not legal advice and is not intended as legal advice. The article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article does create any attorney client relationship between you and the Law Offices of Kenneth U. Reyes, APC. This article is not a solicitation.
Attorney Kenneth Ursua Reyes is a Certified Family Law Specialist. He was President of the Philippine American Bar Association. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. He is a graduate of Southwestern University Law School in Los Angeles and California State University, San Bernardino School of Business Administration. He has extensive CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, APC is located at 3699 Wilshire Blvd., Suite 747, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail kenneth@kenreyeslaw.com. Visit our website at kenreyeslaw.com