Child Custody & California's Move-Away Laws
When the custodial parent decides to move to a new home, the relocation potentially can impact the accessibility of the non-custodial parent to the children and may violate an existing custody and/or visitation order.
June 03, 2009 /24-7PressRelease/ -- Child Custody & California's Move-Away Laws
Article provided by the Law Offices of Korol & Velen. Please visit our Web site at http://www.korolandvelen.com.
The current economic difficulties in the US are hitting California especially hard. As unemployment rates soar to all-time highs, parents are finding it necessary to take drastic measures to support their families, including relocating to other parts of the state or country to find sustainable employment.
The federal and state constitutions provide US citizens the right to move freely across county and state borders. But these rights of free movement are not the same for single or divorced parents who may find their planned relocations challenged by their children's non-custodial parents.
The number of move-away petitions continues to increase as the economy worsens. Parents who may be contemplating a move or who already have secured new employment in a different town, city or state must be aware of the potential impact their decision may have on their current child custody arrangement.
How Can Relocation Affect Child Custody?
When the custodial parent decides to move to a new home, whether across town or across the country, the relocation potentially can impact the accessibility of the non-custodial parent to the children and may violate an existing custody and/or visitation order. In order to comply with the law, the custodial parent must seek approval from the court before moving with their children by filing a move-away petition.
California law preserves the rights of custodial parents to change residences. The court cannot prevent a parent from moving or issue an order to punish a parent for relocating. However, the court can make modifications to the custody and visitation arrangements if it finds it is in the best interests of the child to do so in light of the move.
Relocation also can be grounds for the non-custodial parent to request a change in the custody arrangement. State courts recognize relocation as a significant change in circumstances that may necessitate a modification of the custody order. However, the very fact that the custodial parent is moving is not enough on its own for the court to modify custody. The non-custodial parent must be able to show that the move is such a detriment to the child that the court must determine whether there should be a change in custody in order to protect the welfare of the child.
The court will consider whether or not the move is an attempt by the custodial parent to limit or otherwise interfere with the other parent's rights to see the child --even if the custodial parent has a legitimate reason for moving, such as a new job.
Some of the factors the court will consider in determining whether to modify custody include:
• The child's interest in stability and continuity in the current custody arrangement
• The distance of the move
• The age of the child
• The child's relationship with both parents
• The parents' relationship with each other, including their ability to communicate and cooperate with one another and their willingness to put the child's interests first
• Wishes of the child, if the child is mature enough to appropriately indicate them
• The custodial parent's reasons for the move
• The extent to which the parents are currently sharing custody
Even if the court does not find sufficient evidence to modify the custody order, the court still has the power to modify the visitation agreement and award greater contact to the non-custodial parent.
History of California Move-Away Laws
California's move-away laws have undergone significant changes in the last several years. Because of the importance of child custody and the impact these legal changes have on the rights of custodial and non-custodial parents alike, the changes have been controversial and much debated in the legal community as well as the public sphere.
• In In Re Marriage of Burgess, the California Supreme Court declared that custodial parents seeking to relocate with their children do not have the burden of proving that the move was "necessary." Following the 1996 decision, the California legislature made the Burgess opinion the law by codifying it in Family Code §7501. This change in the law ushered in a period in California of very few limits on the ability of custodial parents to move with their children.
• In the 2004 decision in In Re Marriage of LaMusaga, the California Supreme Court imposed a limit on the ability of custodial parents to move with their children. In the LaMusaga opinion, the court stated that non-custodial parents could seek a change in custody when the custodial parent decided to relocate with the child if they could show the move was a detriment to the child.
• In response to the LaMusaga opinion, Senate Bill 1482 was submitted to the state legislature in 2006. This bill was the second attempt by the legislature to abrogate from the LaMusaga opinion. It sought to preclude non-custodial parents from introducing specific types of evidence to contest custody during a move-away petition, including evidence of the impact of the move on the parent-child relationship. The bill was eventually pulled from consideration after massive public criticism.
Protect Your Children's Interests
If you need to relocate for a job or want to prevent your children from moving away, contact a family law attorney experienced in move-aways. The attorney can help you build the most persuasive argument possible to protect the interests of your children and support your position.
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