If you wish to move with your child, you must notify the other parent. If you are only moving close by, and the child’s school and custodial schedule will not be impacted, then this is merely a notification process. This notice must be given to both the other parent and their attorney of record. The notice typically may be done by:
- Certified Mail;
- With return receipt requested; and
- Prepaid postage mail
Notice should be given at least forty-five (45) days prior to the intended move.
The purpose of the required notice is to allow the other parent to file an objection with the Court in a Request for Order, or for the two of you to come to an agreement on the move if possible.
If the other parent is not agreeable to the move and files a Request for Order to prevent the move, then the Court will go through an analysis on whether to allow the move or not. The first and most important thing that the court looks at is who has the burden to show the Court that a move should be granted or denied? The burden is determined by the custodial orders.
If you have existing post-Judgment final orders, then the burden is decided based on your custodial orders.
- Custodial parents with sole legal and sole physical custody have the presumptive right to move and there is no evidentiary hearing on the move away UNLESS the non-custodial parent proves a threshold showing of a detriment to the minor child(ren) if the move were allowed. If the non-custodial parent meets this burden to show detriment would occur from the move, then the burden shifts back to the custodial parent who wants to move and the analysis turns to the best interests of the child.
- Custodial orders for joint legal and joint physical custody with a 50/50 shared visitation schedule require an evidentiary hearing. The custodial parent desiring to move has the burden to show the best interests of the child would be served by moving with the custodial parent.
- Custodial orders for joint legal and joint physical custody with less than 50/50 visitation schedule or a primary physical custody, then there is no bright line rule, and the Judge assigned to your case has the discretion to decide whether there will be a hearing. In this case, the focus and burden for the moving parent will be to argue that the order is not a true joint physical custody order and the best interests of the child necessitate a move with the moving parent.
When a Request for Order is filed objecting to a move away, Judges will often order an investigation regarding the request. This investigation may be a “Child Custody Investigation” completed by Family Court Services or through an investigation completed by an Evidence Code § 730 expert, referred to as a “730 evaluation.” The investigation is to assist the court in determining if the move away will be detrimental to the child.
When considering a move away case, there are no “bright line rules.” Each case is assessed differently according to the different facts involved. The Court must consider all circumstances that affect the child(ren)’s best interest in the move away. However, pursuant to case law, there are certain factors the Court will consider. See In Marriage of Burgess, (1996) 13 Cal. 4th 25; In re Marriage of LaMusga, (2004) 32 Cal 4th 1072. Some examples of these are:
- the age of the child(ren);
- the stability and continuity of the parent-child relationships;
- the motives and reasons for the desired move;
- the capabilities of the parents to effectively co-parent for the child’s benefit;
- the ability to maintain the visitation schedule and the non-moving parents frequent and continuing contact with the child; and
- the effect the move may have on any sibling relationships, including half-siblings.
It takes time to obtain a hearing and complete the potential investigation regarding requested moves. So, if you are requesting to move away with your child, then you should discuss your options and timeline with an attorney. Some considerations to discuss and strategize include whether you should file your own Request for Order with the Court or begin the 45-day notification process with your co-parent. If you would discuss a potential move away request, call Moore Law for Children to schedule a consultation to discuss your personal goals and come up with a strategic plan with an experienced family law attorney.
