How to Obtain a Move Away Order California

Non-custodial parent issues involving a move away order in California usually arise when a parent wants to move out-of-state due to a new job opportunity, or if he/she is getting remarried. When one parent wants or needs to relocate and to move away with their child, they usually need to get the consent of the other parent. If the other parent refuses to consent, the parent planning to relocate can seek a move away order from the court. A move away order is requested when a parent wants to move to another city, county, state or country with their child.

Primary Custodial Parent and Move Away Order California

If one parent is the primary custodial parent, recent cases in California show that the court is likely to allow the parent and children to move. California Family Code Section 7501 provides that “a parent entitled to custody of a child has a right to change the child’s residence, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child.”

The interpretation of this section of the California Family Code is not that straightforward. There have been many contradictory appellate decisions over the years. Many courts have imposed restrictions on a parent’s right to move and relocate based on factors such as proving the move is “essential, imperative”, necessary or expedient.” Other courts have taken the position that the primary custodial parent has the absolute right to move.

In cases where the child or children spend a considerable amount of time with each parent and have joint or “shared” custody, the problem becomes more complex and the court takes into consideration the best interests of the child.

Family Code Section §3020(b) promotes that it is the public policy of California to assure that children have “frequent and continuing contact with both parents” after the parents have separated or dissolved their marriage. Courts have found that this statute does not prevent awarding sole custody to a parent intending to move or require them to prove that the move is “necessary.”

Burden of Proof Lies with Non-custodial Parent

The custodial parent who is relocating does not necessarily have to prove to the court that the move is either “necessary” or that the move is “in the best interest of the child.” On the contrary, in move-away cases, the non-custodial parent has the burden to oppose the move and show that 1) the move would cause detriment to the child and 2) the custodial parent has a bad faith basis for moving.

Condition in Previous Court Order

If the parties previously signed a stipulated agreement that requires the custodial parent to obtain the other parent’s consent to move, the custodial parent must show that the decision to move was, in fact, made in good faith. Despite this, the non-custodial parent still has the burden to prove that the move would be detrimental to the child.

Using Move as Grounds to Modify Existing Custody Order

Most disputes regarding a move away arise when one parent having sole physical custody wants to move with the children. In this situation, the parent relocating has the presumptive right to move without the burden of showing the move is necessary. Changed Circumstances Rule – Burden of Detriment

If there is an existing custody order and the primary custodial parent wants to relocate with the child, it is the non-custodial parent who bears the burden of showing that the move would cause detriment to the child and that existing order be reevaluated. Court Discretion in Determining Child’s Best Interest:

If the non-custodial parent is successful in showing that the move could be detrimental to the child, the court must then decide whether a change of custody is in the child’s best interest. Some factors taken into consideration by the court when deciding whether to modify and change a custody order include:

  • The reason for the move
  • How far the child would be moving
  • The child’s age
  • The relationship the child has with each parent
  • The child’s wishes (considered based on age and maturity)
  • The child’s stability and continuity in the current custodial arrangement
  • The current time-ratio the child has with each parent

The Affect of Joint Physical Custody on Move Away Request

In situations when parents have joint custody, and one parent does not want the other parent to move away with the child, the parent seeking to move will need to request a move away order. The parent will have to show that the move is in the child’s best interest.

Liberal visitation v. Joint custody

The courts use a different analysis in assessing liberal visitation as compared to joint custody situations where the parents share joint physical custody and one parent wants to move with the children. There is case-law that sheds some light on how court’s interpret sole custody with liberal visitation from a joint physical custody arrangement. If the parent’s time-share is less than 30 percent, courts will generally find that sole custody is with the other parent. If a parent’s time is more than 30%, the court tends to look at other factors such as how much time a parent visits to help with homework, participates in doctor visits, parent-teacher conferences and extracurricular activities that is not part of their custodial time. When a parent has a time-share of 45 percent or more, courts generally characterize the parenting arrangement as joint custody.

International Move Away Orders

International Move Away Orders pose even greater problems for the courts where they must take into consideration 1) the impact of the child moving to a place with a different culture, 2) the ability of the non-custodial parent to visit and keep up a relationship with the child and 3) the obvious problem of retaining California court jurisdiction and the ability to issue orders about custody, visitation and support.

Minimizing Impact of Move

When courts do approve a move away order, courts have tried to lessen the impact of court-approved moves and to encourage “frequent and continuing contact” with both parents in many different ways such as:

  • Ordering the moving parent to bring the child back to California on a periodic basis
  • Expanding school vacation visitation periods for the non-custodial parent
  • Pay the non-custodial parent’s expensive to travel to the children for visits or
  • Allocating all travel expenses to the custodial parent

Move Away Order Forms – Filing a Request for Move Away Order

The forms for filing a move away request are the same forms for any other type of Request for Order in a family law case. The key part of the move away forms is the supporting Declaration since it is imperative that the basis for your request to move away is clearly substantiated for the court’s consideration. Creating a clear and concise declaration is your opportunity to tell your story to the court and this Declaration is probably the most important aspect of the paperwork. A People’s Choice has extensive legal writing experience to help you clearly outline the reasons for the court to defend your position on a move away request.

For help getting or responding to a California family law move away order, contact A People’s Choice. We can help prepare all the move away order forms for California, set your hearing and help make sure the other party is properly serve with the paperwork.

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By |2018-01-18T15:47:36-07:00May 24th, 2015|Family Law|51 Comments

About the Author:

Sandra M. McCarthy, founder of A People’s Choice Inc., has worked exclusively in the legal field since 1976. She served as the 2004-2005 President of CALDA (California Association of Legal Document Assistants). She obtained a Paralegal Certificate from the University of California, Santa Barbara. During her career in the legal field, she has worked as a freelance paralegal, law office manager and paralegal studies teacher, and has co-authored numerous legal publications and written hundreds of self-help legal articles. As a registered Legal Document Assistant, Sandy is dedicated to providing affordable, low-cost, self-help document preparation services for California consumers in all 58 counties.

51 Comments

  1. Beth Burch April 4, 2019 at 7:55 pm

    I need to move out of Silicon Valley because my rent and my healthcare come to over 67% of my alimony and child support. I am running at a huge deficit every month. I owe the IRS for three years of payments, and I am about to file bankruptcy. I’ve been looking for work, but at 54 and out of the workforce full time for 17 years, they aren’t opening their doors. I need to move in with my mother in Phoenix to pay bills and to help her. I can’t pay an attorney at this time to help me file. How difficult do you think it would be to relocate to get back above water. My son only sees his father about two full days a month, and usually if I request a night off to catch my breath. I have been getting a lot of responses to applications I have filled out in Phoenix.

    • Sandy McCarthy April 10, 2019 at 5:56 pm

      We can certainly help you to petition the court to move away if that is the path you would like to take. We will make every effort to provide details and specific reasons why you are asking to move. Please give us a call at 800-747-2780 for help.

  2. Sonya M Garcia March 12, 2019 at 8:02 pm

    My uncle and his wife have I think temparary guardianship, In 3 years I’ve never been notified of a court date or any outcomes. The only time I heard anything was when I was in prison I got served with child support papers. Now they want to move out of state all the way to Florida from California. Do I have a right to stop them?

    • Sandy McCarthy March 17, 2019 at 1:51 pm

      Sonya – I would speak to a lawyer if you need legal advice. Our role as a legal document assistant is simply to prepare court documents.

  3. LaShelle February 3, 2019 at 12:18 pm

    Hello,
    My husband and I agreed to 50/50 custody in August 2018, he moved to NYC in Oct 2018 for a job at which at which point the judge temporarily granted me 93% until our court hearing in April. In January 2019, I filed a move away petition and the hearing is in April. Is there a form your company can fill out to request a sooner hearing date that I could pay?

    • Sandy McCarthy February 4, 2019 at 7:57 pm

      Usually move-away motions are not heard in shortened notice.

  4. Laura January 28, 2019 at 8:41 pm

    Hi, My fiancé and I are relocating to GA as he has a job opportunity and we can buy a house, versus renting in California.The cost of living being a lot less of course. My ex doesn’t execute his 34% time with our son (29% is the normal), has no job – voluntarily quit 2 jobs in the last 18 months, calls him about 1/3 of his allotted FaceTime calls, never shows up to scheduled doctor appointments or preschool events, and doesn’t ever pay me on time for medical reimbursements, etc. I would continue with my current job remotely and be able to be with my son more time since I would work from home. He’s 3 years old. Would a judge allow me to move based on the above and what steps/forms do I need to take? Based on the past, he will probably want to go to trial. How long do these cases take? I’m in San Diego.

    • Sandy McCarthy January 28, 2019 at 9:07 pm

      We could certainly help you prepare the required motion to request the relief that you desire but it is really up to the judge to make the decision. Please give us a call at 800-747-2780.

  5. Jana D. January 19, 2019 at 2:55 pm

    Question. Unmarried parent. Was served with FL300 for joint custody. I filed a response, and in my response, stated that I wanted to move out-of-state. At remediation, it was told to me that in order to move out-of-state, I needed to file my own FL300, not just a response. Therefore, physical custody was recommended as 50/50. I am now filing my own FL300 to move, do I need to file anything in addition to have the 50/50 changed and request Sole physical custody? I am wanting sole physical and 50/50 legal custody.

    • Sandy McCarthy January 21, 2019 at 6:35 pm

      Hi Jana – Unless our office was helping you with the paperwork, I would not be able to comment on this.

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