A move-away (relocation) case arises when one custodial parent wishes to move to a new location with the child, and the move would significantly impact the current custody or visitation schedule because of the distance. What does a parent need to consider when they want to relocate to a different state due to a job offer or other life-changing circumstance? For the parent hoping to move, and for the one opposing it, understanding the factors the court will consider, and your custodial rights is essential. In California, “move-away” or relocation cases arise when a parent’s planned move would significantly disrupt the existing custody or visitation arrangement. Because such moves can deeply affect a child’s stability and relationship with both parents, the courts must carefully balance a parent’s right to relocate with the child’s right to stability and frequent and continuing contact with both parents. Unless one parent has a presumptive right to relocate with the children, the cases are decided on one central question: what outcome best serves the child’s best interests?
If you and the other parent agree to the move, you can both sign a written agreement and submit it to the court for approval. However, if the other parent does not agree, you must request and obtain a move-away order from the court before relocating with your child. If you relocate without the other parent’s consent or a court order granting relocation and deprive the other parent of custody or visitation, it may negatively affect your future parenting rights. You may even be subject to criminal penalties and fines under California Penal Code Section 278.5 for child abduction.
To Request or Oppose a Move-Away Order- Call (619) 517-2821 for a free consultation. Our skilled legal guidance at Neinas Smolina APC can be crucial in protecting your parental rights and ensuring a favorable outcome.
Important Factors Courts Consider
A move-away order is a decision made by the family court that gives one parent permission to relocate with their child to another city, county, or state. When parents share custody, moving can affect the other parent’s ability to see the child, so the court must make sure the move is in the child’s best interest. In California, such cases are legally and emotionally complex, as courts must balance a parent’s right to relocate with the child’s best interests and ongoing relationship with both parents.
1. A Parent’s Right to Relocate vs. the Child’s Best Interests
- Under California Family Code § 7501(a), a parent awarded primary custody by the court generally has the right to change the child’s residence, but that right is not absolute. The court may restrain or modify custody if the court makes a finding that the move would harm the child’s welfare or damage their relationship with the other parent. In the Marriage of Burgess (1996) 13 Cal. App. 4th 25, 32 and Marriage of LaMusga (2004) 32 Cal.4th 1072, the court held that custodial parent’s presumptive right to relocate with children is not dependent on whether parents had a history of cooperative coparenting.
- California’s public policy promotes frequent and continuing contact between children and both parents when it supports the child’s wellbeing.
- When the non-custodial parent objects, they must first show detriment to the child from the proposed move.
- If the parents equally care for the children and/or if there are only temporary custody and visitation orders in place, the court will use child’s best-interest analysis and La Musga factors.
2. Best Interest Analysis
- California family court has the widest discretion to determine a custody plan that is in the best interest of the children, and to look at all the circumstances surrounding their best interest, including health, safety and welfare of the children, a history of abuse, nature and amount of contact with both parents. (Fam. Code §§ 3040, 3011; Marriage of Burgess, supra, 13 Cal. App. 4th at 31-32; see also Ragghanti v. Reyes (2004) 123 Cal. App. 4th 989, 966.)
- The court may also consider any effects of the children’s contemplated relocation on their rights and welfare. (Marriage of Burgess, supra, 13 Cal.4th at 32, Marriage of La Musga, supra, 32 Cal. App. 4th at 1072, J.M. v. G.H. (2014) 228 Cal. App. 4that 925, 935.)
3. The Landmark Case: In re Marriage of LaMusga (2004)
The LaMusga decision remains the guiding authority for the move-away cases. The courts consider the following factors:
- The children’s interest in stability and continuity in the custodial arrangement;
- The distance of the move;
- The children’s ages;
- The children’s relationship with both parents;
- The relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests;
- The wishes of the children if they are mature enough for such an inquiry to be appropriate;
- The reasons for the proposed move; and
- The extent to which the parents are currently sharing custody.
4. The court must decide the move-away assuming the moving parent is relocating
- Building on In re Marriage of Burgess (1996), LaMusga clarified that while a parent has a general right to move, the court may transfer custody if the move would seriously harm the child’s emotional wellbeing or relationship with the other parent.
- Case-by-case analysis: There are no rigid rules; courts must evaluate factors such as the child’s age, stability, relationship with each parent, and reasons for the move.
- Procedure:
- The objecting parent must show that the relocation poses potential harm or a “change in circumstances.”
- The court then determines whether a custody modification is in the child’s best interest.
The Move-Away Process
If you wish to relocate with your child, always review your current custody or visitation orders before planning a move. File paperwork with the family law court explaining why the move is in your child’s best interest. The court may set a hearing or multiple hearings to review the facts before deciding. Both parents can present evidence about how the move would affect the child. The court decides whether to grant or deny the move-away order, based on the child’s welfare.
1. Notice Requirements
Courts may specify that a parent shall notify the other parent if the parent plans to change the residence of the child for more than 30 days, unless there is prior written agreement to the removal. Cal Fam Code § 3024. The notice shall be given before the contemplated move, by mail, return receipt requested, postage prepaid, to the last known address of the parent to be notified, with a copy sent to that parent’s counsel of record. Cal Fam Code § 3024. To the extent feasible, the notice shall be provided within a minimum of 45 days before the proposed change of residence to allow time for mediation of a new agreement concerning custody.
2. Evidentiary Hearing Standards
An evidentiary hearing in a move-away situation should be held only if necessary. (In re Marriage of Brown & Yana (2006), 37 Cal. 4th 947.) Where one parent has been awarded sole legal and sole physical custody, and the noncustodial parent opposes relocation, a trial court may deny modification requests without an evidentiary hearing if the noncustodial parent’s allegation or showing of detriment to the child is insubstantial or legally insufficient to warrant relief.
3. Burden of Proof in Move-Away Cases
The burden of proof differs significantly between initial custody determinations and modification proceedings. In an initial custody determination, a parent seeking to relocate with minor children bears no burden of establishing that the move is necessary. The trial court must consider, among other factors, the effects of relocation on the best interests of the minor children, including the health, safety, and welfare of the children and the nature and amount of contact with both parents.
However, when a noncustodial parent opposes a custodial parent’s proposed relocation and seeks custody modification, different standards apply. A noncustodial parent opposing such a move has a right to present evidence on both relevant issues: bad faith on the part of the custodial parent and detriment to the children. The court must consider whether the move would be detrimental to the children, thus rendering a change in custody essential or expedient for their welfare.
4. Trial Court’s Broad Discretion
Even if prejudice is not established and a change in custody is not essential or expedient for the child’s welfare, the trial court has broad discretion to modify orders concerning contact and visitation to minimize the minor children’s loss of contact with the noncustodial parent in the event of a move. (Marriage of Burgess (1996) 13 Cal. App. 4th 25, 51.)
Similarly, a noncustodial parent’s relocation that precludes existing visitation rights can be ground for modifying visitation orders to allow for different contact schedules, such as longer but less frequent visitation periods.
5. Evidence to Present
For parents seeking to relocate, the evidentiary focus should be demonstrating good faith reasons for the move and showing how the relocation serves the child’s best interests through La Musga analysis. For parents opposing relocation, evidence must focus on demonstrating either bad faith by the custodial parent or detriment to the children from the proposed move. Such evidence might include testimony about the child’s opposition to the move and how relocation would separate the child from extended family, friends, and classmates.
To Request or Oppose a Move-Away Order, Call (619) 517-2821 for a free consultation. Our skilled legal guidance can be crucial in protecting your parental rights and ensuring a favorable outcome.
Relocating Without a Move-Away Order
- Even if you have primary physical custody, you cannot relocate out of state without court approval unless the other parent agrees.
- If both parents reach an agreement on custody and visitation (including relocation terms), they can submit it to the family court for approval.
- However, when both parents are actively involved, such agreements can be difficult to reach, in which case, a move-away request must be filed with the court.
- Important: Moving a child without court approval or the other parent’s consent may lead to criminal penalties and fines under California Penal Code § 278.5, which considers it a form of child abduction.
If the Other Parent Wants To Move Away
- You can object to the move-away and ask the court to review your evidence when making a decision whether the move serves your child’s best interest.
- If you are open to an agreement, consider the following:
- Your child’s age and emotional needs
- The relationship your child has with both parents
- The distance between homes and the effect on visitation
- Travel and transportation costs, and who will pay for them
- If you and your co-parent can come up with a new parenting plan
- If the move is out of state, consult a family law attorney experienced in interstate custody matters to ensure clarity about which state retains jurisdiction for future custody decisions.
To Find Out Your Rights for the Move-Away, Call our San Diego Attorney Elena Smolina at (619) 517-2821 for a free consultation. Whether you are requesting or opposing a move-away, it’s important to consult an experienced attorney to understand your rights and options.
Our Divorce Law Firm, Neinas Smolina APC, Will Help You Navigate Your Move-Away (Relocation) Case in California
Call (619) 517-2821 to schedule your confidential case review
Move-away custody disputes can be complex and emotional. Our San Diego family law attorneys provide essential legal representation helping parents prepare court filings, negotiate custody terms, and protect their parental rights. At Neinas Smolina APC, both founding partners, Scott Neinas and Elena Smolina, have substantial experience and successful track record with relocation cases. Our attorneys truly understand what you’re facing and care about you and your family.