If you’re in the middle of divorce proceedings with a child, you may want to consult with an attorney before making any definitive plans to move out of state.
Families going through divorce proceedings are dealing with so many difficult decisions and changes. One thing that can add to the complications of the divorce process, is moving or relocating. In California, this is usually referred to as a ‘move-away’ case.
So, are you able to relocate your kids out of state in the middle of a divorce?
Like most things when it comes to divorce, the situation is highly specific to the family and is not always cut and dry. The outcome varies depending on the personal circumstances of those involved in the case, and the well being of the child or children who are involved. But just because one parent is moving, it doesn’t necessarily mean that they’ll lose custody.
If the parent with primary physical custody of the child wants to move, they need to file a move-away petition with the courts and discuss the details of why they are relocating.
The ex-spouse who is moving must give at least 45 days notice of their plans to leave the area. If both parents don’t agree to the move, then the moving parent must obtain approval from the court to relocate with the child. Then a hearing will be scheduled with the court for a judge to review all information about the move, and any possible ramifications for the child or children.
In California, a case in 2004 that had a big impact on moving and child custody cases was the Marriage of LaMusga. In this case, a mother was seeking to relocate out of the state with her two children; her ex-spouse shared joint custody of the children. It was established that the move would have a negative impact on the children because their mother didn’t encourage them to maintain a relationship with their father. The court then went on to rule that if the mother decided to move away, the father would get primary custody.
The California Court of Appeals reversed the decision, but ultimately it came before the Supreme Court who rejected the Court of Appeal’s decision stating that the trial court had the discretion to order a change in custody if the change was in the best interests of the child. So essentially, LaMusga requires that the trial court consider the factors that the court deemed relevant to a determination as to the child’s best interests.
The LaMusga case set a precedent for what factors the court should consider when hearing a move-away case.
When deciding whether or not relocating is a feasible custody option, California judges are essentially taking a look at what’s in the best interest of the child. A few general factors they’re likely take into consideration are:
The parent’s reason for moving
The current custody agreement and the child’s relationship with the parent who is relocating
The parents’ relationship with each other
The child’s age
The distance of the possible relocation
The child’s physical, emotional and educational needs and how a move would impact them
Any other specific information the court believes is necessary to determine the child’s best interest
If you are a parent and are considering a move out of state in the middle of your divorce, a skilled attorney is essential to guiding you through the process and formulating a plan.
Contact us today for a consultation to discuss your options.