Move-aways, where a custodial parent leaves the county with the children, can be tough, especially in San Diego County. Here, the Court strongly frowns upon move-aways and has made it procedure to include in custody orders that a party may not move without written agreement of the parties or order of the Court. One San Diego judge went so far as to not allow a custodial mom to relocate. This was later reversed on appeal.
Because that’s not how things are supposed to work, legally.
In California, the Court is supposed to accept a parent at his/her word when he/she says he/she is leaving. At that point, if a request to modify custody is made, the Court can determine what happens to the children, but it cannot stop the move-away.
The custodial parent has the presumptive right to change residence with their children, as long as such relocation would not prejudice the children’s rights or welfare. A change in custody in move-away cases is justified only if the relocation will be detrimental to the child, making it “essential or expedient for the welfare of the child that there be a change”. This is called the Burgess standard, per the landmark case, Marriage of Burgess (1996), 13 Cal.App.4th 25, 32, 38. This case was so huge that it was, in its entirety, codified as Family Code §7501(b).
Under Burgess, when the parent who has the sole physical custody wishes to move, the burden shifts to the other parent to prove that the relocation would cause a detriment to the minor and that a different custody arrangement would be in his best interest.
Now, sometimes a two parents share joint physical custody, at least on paper. At that point, the Court needs to look at the actual facts on the ground to see whether physical custody is truly joint or whether one parent has sole physical custody with visitation rights accorded the other parent. There is no hard and fast cut-off between joint and sole physical custody, but Court’s have consistently upheld 20% as not sufficient to justify the term “joint.”
The other case on point is In Re Marriage of LaMusga (2004) 32 Cal.4th 1072 (pronounced “La Moo-Shay”). It provides the checklist for the Court to consider when reviewing a request to modify custody. Factors are:
- the children’s interest in stability and continuity in the custodial arrangement;
- the distance of the move;
- the age of the child; the child’s relationship with both parents; the relationship between the parents, including but not limited to, their ability to communicate cooperatively and effectively and their willingness to put the interests of the child above their individual interests;
- the wishes of the child if mature enough for such an inquiry to be appropriate;
- the reasons for the proposed move;
- the extent to which the parents are currently sharing custody.
Any relocation will involve some detriment to the parent-child relationship; the Court must consider the level of detriment and whether it renders it essential or expedient for the welfare of the child to change custody. It can’t assume that all move-aways are not in the best interests of the child.
The short version of all of this is: You have the right to move. If you have sole custody, you have the presumptive right to maintain custody of your children. Anti move-away orders do not have to be standard. If you see one proposed in your Family Court Services (FCS) report, or if one appears in a marital settlement agreement drafted by your attorney or the other side, ask yourself: do I really want this? Is this really necessary? Protect your rights with vigilance.
Disclaimer: The information provided in this blog is for general informational purposes and it should not be relied on as legal advice. An attorney-client relationship is not formed by reading the information on this site and can only be formed by a written agreement that sets forth the scope of the relationship and the fee arrangement. Whether you’re in San Diego, Imperial or Riverside County; Hemet to El Centro to Vista, there is no substitute for expert legal assistance. If you need representation, schedule a consultation with the Barefoot team.
Written by Gideon Marcus