Ask a family law court judge to name the most difficult type of case to decide and most likely she or he will say move-away child custody cases, which in family law parlance means when one party seeks to relocate with her or his child to another geographic area. The requested destination could be a 60-mile move or a 6,000-plus-mile move. After separation, when a custodial parent decides to move, often heart-wrenching decisions have to be made about where the children will live and how and to what extent the other parent will maintain a relationship with them. If a Court grants the move, the non-custodial parent will no longer be able to participate in the day-to-day life of her or his child -- missing out on carpooling, school events, helping with homework and extra-curricular activities. On the other hand, if the Court denies the custodial parent's move-away request and the custodial parent has no choice but to move away from his or her current geographic location, then the child will be separated from the parent with whom the child may have the closest bond. In either situation, the child loses.
In California, where I practice family law, a large percentage of the population comes from another state or even another country -- resulting in a high number of move-away cases. Generally speaking, our increasingly mobile society and the economy have contributed to an upswing in move-aways. Many times a divorced/separated parent wants or needs to return to her or his home state or country to be able to take advantage of a family support system. Often a parent is going to where a job or remarriage necessitates the move. It is the exception rather than the rule that the parents can agree on one parent moving and the resulting changes in timeshare, which usually means that the non-moving party has the child during the majority of holidays and vacation. However, this can prove to be problematic when very young children are involved and they cannot spend significant time away from the other parent. The majority of the time these situations become emotional powder kegs and the parties can't agree on anything, let alone the over-arching concern, i.e,. what is in the child's best interest. In these cases it is up to the Court to play "Solomon" and decide whether to allow the relocation with the children. States have different rules surrounding move-away custody, but in general the best interest of the child is the gold standard and this will be the focus of the Court in making its ruling. In California and other states with permissive move-away laws, the burden of proof will be on the non-custodial parent (usually those parents who spend less than 35 percent of the time with the children) to prove that the move will be harmful to the child. Conversely, states with more restrictive laws on move-aways may place a higher burden on the custodial parent to show that the move will be in the best of interest of the child. Here are major factors that the Court (at least in California) will consider in move-away decisions:
- Maintaining stability and continuity in the child's life: The Court will look at the timeshare percentage in the current custody order, evaluate how much time the child actually spends with each parent, how long the custody order has been in place, the child's connections to the custodial and non-custodial parents, as well as to the community (including ties to school activities and friends). In some states, the custody order cannot be modified for a couple of years.
If you are seeking a move-away order or are looking to prevent one, your first step should be to consult with a family attorney with particular expertise in this area. Your attorney will be able to advise you on the factors in your case that may influence the Court, what you can do to support your position and strategies for effectively presenting your case.
Move-aways are expensive -- both emotionally and financially, but our children are invaluable and as parents we will do almost anything to protect and preserve that relationship.