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.

Get help with your California legal documents today!

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By | 2018-01-18T15:47:36+00:00 May 24th, 2015|Family Law|29 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.

29 Comments

  1. Beverly February 5, 2016 at 5:15 pm - Reply

    I have a few questions.
    When and where to field for divorce if you are low income?
    Is it even possible if you are low income?
    Move away oreder for before the divorce. I have reasons to want to be safely moved away before I file for divorce.
    What about if my spouse sells the house.
    How do I make sure I get my half of the profits?
    What if the spouse moves out of state? Am I regally required to move there with the children if I do not want to? Can I move somewhere else instead?
    Thank you
    Beverly

    • Sandy McCarthy February 6, 2016 at 6:06 pm - Reply

      We are not allowed to provide legal advice but the following tips may help. Jurisdiction determines where you can file your divorce. Please refer to our article on divorce residency requirements for more information regarding this. Once you file for divorce, there are certain automatic orders that come into place. These orders are identified on page 2 of the Family Law Summons. If you are concerned about your husband selling assets or taking community property, it may be important for you to file divorce as soon as possible to get the automatic orders in place. Obviously hiring an attorney will be substantially more expensive and could run into tens of thousands of dollars. We are able to assist you as a non-attorney service and can help you file protective orders and get hearings set without having to hire a lawyer. The more paperwork and process you can get started on your own will save you a substantial amount of money.

  2. Dianne April 3, 2017 at 6:58 am - Reply

    What if the parents of the child are not married? The father signed the birth certificate. The mother wants to move with the child and her parents(the grandparents) to another state because the cost of living is so high in California. The child’s mother plans to work while the grandparents will provide childcare. The child is only 5 months old.

    • Sandy McCarthy April 4, 2017 at 3:54 am - Reply

      if I were in that situation I would seek to immediately file a paternity case and then file a motion to obtain an order regarding custody and visitation. Once they move and the child has established residency in another state, it is going to be far more difficult for you. Let us know if you would like to pursue that option.

  3. Donna April 12, 2017 at 2:14 am - Reply

    I have full physical and legal custody of our 14 year old son. His father has lost all contact with him by way of court order, no visitation st all. I am looking to move from CA to GA where my mother, family and friends are. We have no family in CA. Do you feel that I would have a good case for obtaining a move away order?

    • Sandy McCarthy April 12, 2017 at 3:10 am - Reply

      We always try to spend a great deal of time addressing all the issues that a court would consider when approving a move away order. Obviously if the father has not been actively involved that will certainly be helpful but it is not the only issue we would typically address in the moving papers and declaration. Give us a call should you want to proceed with this at 800-747-2780.

  4. Nicole Parenteau May 31, 2017 at 5:04 am - Reply

    I have been granted full physical and legal custody of my kids. However i did put visition on our paperwork for some reason and also stated he can have them on hoildays and summer breaks and spring break. how can i change that to where we will work something out ourselves and just revise the paperwork to just every other christmas and sprinkbreak and every other summer break he can have the kids. Also we are planning on moving out of state how can i assure this will happen the father has already agreed to this and is allowing this move.

    • Sandy McCarthy May 31, 2017 at 5:16 am - Reply

      Hi Nicole – we can prepare the necessary document to modify your current court order based on what you and the father have agreed to. Give us a call at 800-747-2780.

  5. Josie June 8, 2017 at 10:13 pm - Reply

    If I’m not married and father is on birth certificate can I move out of state with my child if not what form do I need to file to move out of state

    • Sandy McCarthy June 10, 2017 at 3:21 pm - Reply

      tThere are many issues that I would be concerned about. First, how old is the child? Second, what type of relationship does the child and the father currently have? Typically you would file a paternity case in California and get formal custody orders. If you just up and move out of the state with the child, the father may be able to go after you for child abduction. Please call our office for help with the paternity documents should you wish to proceed that route.

  6. Kimberly August 24, 2017 at 5:18 am - Reply

    I am the custodial parent and have talked with the non custodial parent about me moving with our 2 children. He has agreed that we are able to move and the visitation remains the same. Is it possible to come up with a written agreement and not have to go to court? We have a court case here in CA, but we have mutually agreed to the move and were trying to avoid having to go back to court.

    • Sandy McCarthy August 24, 2017 at 5:36 am - Reply

      Yes of course and we can get a court order affirming the change. No court appearance would be necessary. Give us a call at 800-747-2780 to get this started!

    • Sandy McCarthy August 29, 2017 at 3:51 am - Reply

      Hi Kimberly: You would definitely want to have our office prepare an agreement that can become a court order to modify your current order. This can be done without you appearing in front of a judge or make a personal appearance at the courthouse. It can be done completely through the paperwork. Please give us a call at 800-747-2780 for help.

  7. joel October 9, 2017 at 4:08 pm - Reply

    Hello Sandy,
    We recently served my wife’s ex husband with court documents after he denied my wife permission to move out of state with their two daughters, she and I got married last year & I was offered a job in New Mexico where not only is the pay better but most importantly the cost of living is way cheaper and we can actually have a better quality of life.
    Being he has not yet responded from when he got served and is now past his 30 days; can we file an entry for default and default judgement?

    • Sandy McCarthy October 10, 2017 at 11:33 am - Reply

      I am not sure what you filed because a move away order is not done by Petition nor do you take a default. It is a motion process. Was a hearing set? You might want to call our office for help as you may have filed the wrong paperwork. 800-747-2780.

  8. They are planning on leaving Saturday when no visitation order has been written. Is that legal? October 26, 2017 at 12:48 am - Reply

    In California, friend’s ex wife was granted move away order Tuesday. They are planning on leaving Saturday when no visitation order has been written. Is that legal?

    • Sandy McCarthy October 26, 2017 at 11:28 am - Reply

      If the court had granted a request to move away based on the current orders or lack of orders, it would appear that would be legal. Perhaps your friend should file a motion for a visitation order is there is not one.

  9. Carol November 2, 2017 at 12:02 am - Reply

    Hi Sandy,

    I am the primary physical custody and share legal custody. He has 2% time shared per our existing order. My child is 10, his father active military and has been stationed (required to reside) in Cuba for the past two years and just received orders to move to VA for the next 5 years. He and my son have a good relationship and keep in contact via FaceTime and text which I am completely for. I have continuously offered holiday breaks and a month during summer as a part of visitation, but he’s never exercised those options fully even before Cuba. It’s a few days here and there but never the full break. I’m now planning to relocate to TX due to the cost of living and a better quality of life. I understand I need to show cause w my sons best interest in my declaration. I’m saving and researching info on the city I’m relocating to am wondering how precise and detailed the information should be in my declaration. Should I secure a job and housing in the new city first showing the school my son would be attending, etc? And do I need to modify the child support order or just update my address if move away is ordered? Thanks in advance for any help or tips. It’s hard finding info where the non custodial is already residing out of state.

    • Sandy McCarthy November 2, 2017 at 2:15 am - Reply

      Filing a move away request is a tricky process. I would strongly recommend that you get professional help from an office like ours or another professional service who is familiar with this process to help you put the documentation together.

  10. Latanya November 17, 2017 at 10:04 am - Reply

    Hi sandy
    Me nor my kids father have ever been to court for child custody. I’m taking on a job in a different state and want my kids to come as well. My kids live with me and i live in a different city then him. He went to the court house where he was and said he filled papers so I won’t take my kids out the state but I haven’t been served or notified of a court date. What do I do?

    • Sandy McCarthy November 18, 2017 at 5:09 am - Reply

      You should contact our office for help in filing a Response asap.

  11. Brittany Hale January 6, 2018 at 12:02 pm - Reply

    have guardianship of my 4.5 year old niece I have for the past three years. My sister the biological mother has not seen her since the guardianship has been established due to it not being in the child’s best interest. My mom and I have raised her and cared for her for the past three years. We recently decided we would like to move to Arizona for financial reasons and to be able to provide for the child and give her the best life. My sister is fighting the move and wants to insist we stay in California. There has been zero visitation with my sister and the child for three years to the child the biological mom is a total stranger. Also my whole family supports my move just not my sister. Does my sister have a case that would make us have to stay in California

    • Sandy McCarthy January 12, 2018 at 4:38 am - Reply

      I would suggest that you seek court permission or sanction to move if your sister is not being cooperation.

  12. Maria February 21, 2018 at 6:53 am - Reply

    Hi,
    I have our child 68% of the time. She will be 4 in 3 weeks. We coparent well, but the part is the cost of living in the Bay Area/Santa Clara county is increasing by the day. I relocated here from San Diego and would like to go back there as it’s much more affordable. He said I wouodnt let me take our daughter. His family are real estate moguls here so cost of living is not a burden on them.
    Would there be a good chance I could move back down to SoCal?

    • Sandy McCarthy February 23, 2018 at 5:34 am - Reply

      Unfortunately there is no way to “predict” a judge’s ruling in these types of matters.

  13. Sunshine February 23, 2018 at 7:05 am - Reply

    My son’s father has never been in his life and ia not on the birth certificate. I don’t know where he live a and haven’t had contact with him since I was pregnant. My son is 15. We want to move to Oregon for my health. I plan on putting a notice in his local paper and putting something online as we have mutual friends. Will this be enough?

    • Sandy McCarthy February 23, 2018 at 3:27 pm - Reply

      Usually people needy get a move away order when there is already an existing order. If you have had no contact whatsoever with the father and there is NO ORDER, I doubt there would be any responsibility for you to publish anything. If I were in your shoes, I would simply just move and not worry about it.

  14. Jessica March 20, 2018 at 6:28 am - Reply

    Current order in place specifies me to have temporary sole legal and physical custody of 19 month old son. Order has been in affect since June 2017 and father of child has made no efforts to coordinate visitation since January 2017. I will be laid off in June of this year 2018 due to a company closure. Currently a resident of California, and living arrangements are available to me and my son in North Carolina. My fiance relocated to NC and has created a stable living environment. All factors considered, how likely will my request for order change be approved? Are the odds in my favor?

    • Sandy McCarthy March 20, 2018 at 10:32 pm - Reply

      Unfortunately there is no way to “predict” odds in any legal situation like this. There are many variations that the court could consider. Obviously if we prepare the documents and the supporting declaration, we will thoroughly reviw the circumstances and situation and present the factual basis and reason for your request in the best light possible. Please give us a call at 800-747-2780 if you would like help with this.

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